IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100026224 


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 his discharge under other than honorable conditions be upgraded to a fully honorable discharge, that the narrative reason for separation be changed to a more appropriate narrative, and that the reentry eligibility (RE) code be changed from "4" to "1" or a more appropriate code that will allow him to reenter the military.

2.  The applicant states he was forced to admit to homosexual conduct as a result of military sexual trauma on 17 May 2009 at Fort Benning, Georgia.  He goes on to state that homosexual conduct was coerced upon him and he was discharged for the wrong reasons.  He also states he was denied legal access and medical access and was denied the opportunity to talk to a sexual assault unit and to seek advice from its staff.

3.  The applicant provides no additional evidence with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was married when he enlisted in the Regular Army in Brooklyn, New York, on 12 May 2009 for a period of 4 years and 16 weeks, training as an infantryman, and an $8,000.00 enlistment bonus.  He was transferred to Fort Benning, Georgia, to undergo one-station unit training.

2.  On 18 May 2009, the applicant authored a handwritten letter to the post commander in which he declared he was a homosexual and he intended to engage in homosexual conduct.

3.  On 19 May 2009, the applicant made a sworn statement in which he stated he was a practicing homosexual and he intended to engage in homosexual activity.  He also stated he was never informed of the "Don't Ask, Don't Tell" policy during his recruiting process and his recruiter told him the Army was an equal opportunity employer.  He further stated he has been aware of his sexuality since age 17 and he was granted asylum by the Irish government after leaving Russia because of his sexual orientation.  He went on to identify the names of two persons who could verify his sexual orientation.  He stated he believed his sexuality would prevent him from fulfilling his duties as a Soldier and he was afraid his comrades would find out and ridicule him as he had already been ridiculed by one of his comrades on 18 May 2009 for being gay.  He stated he desired to be discharged from the Army.

4.  On 4 June 2009, the applicant's commander notified him he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 15, due to homosexual conduct based on his violating the "Don't Ask, Don't Tell" policy.  The applicant concurred with the counseling.

5.  The applicant acknowledged receipt of the notification for proposed separation and indicated he was not a victim of a sexual assault for which an unrestricted report was filed within the past 24 months.  He also elected to waive all of his rights and declined the opportunity to consult with counsel.

6.  On 22 June 2009, the appropriate authority approved the recommendation for discharge and directed that he be issued an uncharacterized (entry-level) characterization of service.

7.  Accordingly, he was discharged on 30 June 2009 under the provisions of Army Regulation 635-200, paragraph 15-3b, due to homosexual conduct (admission).  He completed 1 month and 19 days of active service and his service was uncharacterized.  He was issued an RE code of "4" based on his separation code of "JRB" which is the code indicating separation under paragraph 15-3b of Army Regulation 635-200.

8.  The applicant applied to the Army Discharge Review Board (ADRB) on 8 September 2009 contending that his uncharacterized discharge caused his citizenship application to be denied and resulted in prejudice in civilian life regarding employment.  He also stated his discharge was inequitable because it was based on misconstructions of his statements and the lack of desire by his command to give him a general discharge.  He also contended he was racially and sexually abused in the unit and pressured into writing a statement.

9.  The applicant was granted a personal appearance before the ADRB on 17 May 2010 and was represented by counsel.  He testified before the ADRB and contended he was racially abused by Soldiers and his chain of command and he suffers from post-traumatic stress disorder as documented by the Department of Veterans Affairs.

10.  After reviewing all of the evidence and testimony of the case, the ADRB determined his discharge was both proper and equitable and voted unanimously to deny his request on 19 May 2010.

11.  Pertinent Army Regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

12.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a non-waivable disqualification such as homosexuality, a Department of the Army-imposed bar to reenlistment, or commission of a serious offense.

13.  Army Regulation 635-200, chapter 15, provides the policies and procedures for separating personnel for homosexuality.  Paragraph 15-3b provides that a Soldier will be separated under that chapter if the Soldier has stated he or she is a homosexual or is bi-sexual unless there is a further finding that the Soldier is not homosexual or bi-sexual.  The regulation in effect at the time and presently in effect provides that homosexuality seriously impairs the accomplishment of the military mission and is incompatible with military service.

14.  Army Regulation 635-200 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.  Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days of active service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant's rights.
2.  The RE code and narrative reason for separation assigned to the applicant at the time of his discharge was in accordance with the applicable regulations and the applicant provided no evidence to show otherwise.

3.  The applicant did not receive a discharge under other than honorable conditions.  His service was uncharacterized.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  

4.  The applicant's contentions have been noted.  However, they are not supported by either the evidence submitted with his application or the evidence of record.  Accordingly, his contentions are not sufficiently mitigating to warrant relief given the circumstances of his case and his otherwise undistinguished record of service.

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 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)                                         AR20100026224



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ABCMR Record of Proceedings (cont)                                         AR20100026224



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