IN THE CASE OF:
BOARD DATE: 14 October 2010
DOCKET NUMBER: AR20100009634
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that the reason for his discharge be changed from homosexual admission to medical.
2. The applicant states he said he was gay because he was worried about his family and got wrapped up in what was happening with his father. He believed that if he was deployed to Iraq he would end up getting himself or others killed due to his lack of focus on the battlefield.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 3 January 2007, completed training, and was awarded the military occupational specialty 11B (Infantryman).
2. On 6 August 2007, the applicant's unit commander recommended discharge processing be initiated. He stated "After I read PV2 Z____ his rights per DA Form 3881, which he waived, he volunteered to me that he is a homosexual and that he was tired of living the double life that he had been living."
3. The applicant was afforded physical and mental health evaluations which found no physical or mental abnormalities, and he was determined to be medically fit for retention or appropriate separation.
4. On 23 August 2007, the applicant submitted a written statement wherein he indicated that he was homosexual and could no longer take the stress of living in hiding and fear of being found out.
5. On 24 August 2007, his unit commander initiated the formal separation proceeding and recommended the applicant be discharged with an honorable discharge.
6. On 26 August 2007, after consulting with counsel, the applicant acknowledged his rights under the contemplated discharge action for homosexual conduct (admission) under chapter 15, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). He invoked his right to counsel but waived a hearing by an administrative separation board and declined to make an additional statement in his own behalf.
7. On 3 October 2007, the separation authority approved the separation and directed the applicant receive an honorable discharge.
8. The applicant was honorably discharged on 19 October 2007 for homosexual conduct (admission). He had 9 months and 17 days of creditable service.
9. Army Regulation 635200, chapter 15, states homosexual conduct is grounds for separation from the Army. A statement that demonstrates a propensity or intent to engage in homosexual acts is grounds for discharge not because it reflects the Soldiers sexual orientation, but because the statement indicates a likelihood that the Soldier engages in, or will engage in, homosexual acts. If the unit/immediate commander determines, based on the fact-finding inquiry, that a basis for discharge exists, they will take action required by the administrative board procedures and ensure that a medical examination and mental status evaluation are conducted.
10. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
11. The Uniform Code Of Military Justice (UCMJ), Article 107 (False Statements), provides that any person who, with intent to deceive, signs any false record or other official document or makes any other false official statement shall be punished as a court-martial may direct. The Table of Maximum Punishment shows that a Soldier convicted under Article 107 may receive a maximum punishment of a punitive discharge, five years confinement, and a total forfeiture of all pay and allowances.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he said he was gay because he was worried about his family and got wrapped up in what was happening with his father. He believed that if he was deployed to Iraq he would end up getting himself or others killed due to his lack of focus on the battlefield.
2. Whether or not the applicant is in fact homosexual is irrelevant. He submitted multiple statements that he was gay and this is the only reason he was considered for discharge at that time.
3. If the Board is to believe that the applicant is telling the truth now about his sexual orientation, it must also accept that he deliberately lied at the time of his discharge. This is a serious violation that carries the potential of a punitive discharge under the UCMJ.
4. The record does not contain and the applicant has not provided any evidence of any medical condition incurred while entitled to receive basic pay. At the time of his separation physical examination, competent medical authority determined that the applicant was medically fit for retention or appropriate separation.
5. The applicant's administrative separation was accomplished in compliance with applicable regulations. The type of discharge directed and the reason therefore is appropriate considering all the facts of the case.
6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X___ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_________X__________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20100009634
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ABCMR Record of Proceedings (cont) AR20100009634
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