Applicant Name:  ?????

Application Receipt Date: 2011/01/05	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  “I was a stellar soldier. I did what I was asked always.  I lead my soldiers with honor and distinction. I volunteered for every deployment and assignment.  I never failed an APFT.  I qualified on my assigned weapon every time. I attended additional schools and asked for tough assignments. I loved the Army.  Unfortunately, I made one critical error in judgment.  When I was young, I was molested by a male family member.  Due to this molestation, I questioned my sexuality. I erroneously chose to explore my questions.  I do not know how or why I was investigated, but the point is I accepted the punishment of a discharge with my head held high, but with a heart that could barely contain itself.   Since the time of my discharge, there has not been a day that has gone by that I have not missed the Army and serving in the Army.  Had I been allowed to remain in the Army, I would have continued to serve until retirement. I have been very successful in my civilian life and career.  Instead of beating myself up over the discharge, I kept my head held high and relied on the advice of a great General Officer I worked for in the Army.  He once told me that no matter what you do in life; remember that you are the master of your own destination.  If I could go back in time and change my choices, I would.  I would have loved nothing more than to continue to serve in the military.   Through counseling, therapy and many hours of prayer, I have finally been able to let the past go.  I know what happened to me was not my fault, nor my choosing.  It did not shape my life, or my sexuality.  I humbly and sincerely ask the board to look at my many years of great, commendable service.  My actions, though not consistent with former military standards, did not warrant a discharge character of Under Honorable Conditions (General).  No matter how successful I am in my civilian life, the one thing I have to remind me of the blood, sweat and tears in the Army is an ugly discharge certificate which continues to tear at my soul attempting to open old wounds.  I would gladly accept any reason other than "Homosexual Acts" on my DD214. Although times are changing, this separation reason is still a substantial prejudice.  I have not shown a single person my DD214. I do not believe that it accurately defines my military service."

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 051117
Discharge Received: 			   Date: 060303   Chapter: 15-3a    AR: 635-200
Reason: Homosexual Acts	   RE:     SPD: JRA   Unit/Location: 593d Corps Spt Gp, Fort Lewis, WA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  31
Current ENL Date: 030922    Current ENL Term: Indefinite Years  ?????
Current ENL Service: 	02 Yrs, 05Mos, 11Days ?????
Total Service:  		16 Yrs, 07Mos, 16Days ?????
Previous Discharges: 	RA 930602-960207/HD
                                       RA 960208-980209/HD
                                       RA 980210-010220/HD
                                       RA 010221-030921/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 79S30/Career Counselor   GT: 112   EDU: HS Grad   Overseas: Egypt, Cuba, Iraq   Combat: Iraq (dates NIF)
Decorations/Awards: ARCOM, AAM, AGCM-3, NDSM, GWOTSM, HSM, NCOPDR-2, ASR, OSR-2, MOVSM, MFOM

V.  Post-Discharge Activity
City, State:  Lancaster, NY
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 17 November 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, by reason of homosexuality, in that he engaged in, attempted to engage in, or solicited another person to engage in a homosexual act, with an under other than honorable conditions discharge.  The applicant admitted to his company commander to having engaged in homosexual conduct.  He was advised of his rights.  
       
       On 23 November 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an Administrative Separation Board contingent upon him receiving a characterization of service no less favorable than honorable and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge.  
       
       The applicant having been notified to appear before an administrative separation board, once again, consulted with legal counsel and waived consideration of his case by an Administrative Separation Board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  Again the intermediate commanders reviewed the proposed action and recommended approval of the separation, this time, with a general, under honorable conditions discharge.  
       
       On 9 February 2006, the separation authority approved the conditional waiver request and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation stated that active homosexuality was incompatible with military service and provided, in pertinent part, for the separation of members who actively engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct.  The Army regulation stated that when the sole basis for separation was homosexuality, a discharge under other than honorable conditions may be issued only if such characterization was warranted in accordance with Chapter 3, Section III, and if there was a finding that during the current term of service the Soldier attempted, solicited, or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate in circumstances that violate customary military superior subordinate relationships; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order, or morale due to the close proximity of other Soldiers of the Armed Forces.  In all other cases, the type of discharge would reflect the character of the Soldier’s overall record of service.  The regulation currently in effect does not allow for a discharge under this Chapter as it no longer exists.  When aggravating circumstances are present in a case related to homosexuality, the case may be processed under Chapter 14, AR 635-200 for misconduct.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, the issue and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge or a change to the narrative reason for his discharge.    
       The analyst determined the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct by military personnel.  The applicant’s homosexual acts had an adverse impact on the discipline, good order, and morale of his unit and diminished the quality of his service below that meriting a fully honorable discharge.  
       
       The record indicates that the applicant engaged in homosexual acts, distributed the photographs of these acts to another person, and solicited others for homosexual acts via the internet, all of which when combined with the fact that these acts took place in an office under military control, were considered by his chain of command as aggravating factors as defined in AR 635-200 in effect at the time. 
       
       The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct.  
       
       The applicant contends his discharge is inequitable because he was a stellar Soldier who led and served with honor and distinction, he feels the narrative reason for his separation as listed on his DD Form 214 is prejudicial and that he made a one time critical error that caused him his career.  
       
       The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review and his prior honorable periods of service.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the seriousness of the offenses.  
       
       Moreover, the analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of a non-commissioned officer of the US Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. 
       
       Further, the applicant requests that the narrative reason for his discharge be changed; however, the applicant was discharged under the provisions of Chapter 15, paragraph 15-3b, AR 635-200 in effect at the time, by reason of homosexual acts with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Homosexual Acts” and the separation code is "JRA."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation. 
       
       Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.   
       
       
       
       
       
       
       
       
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 30 September 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: NCOERs (8), AER, awards, email of reference, DD Form 214.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 2    No change 3
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA


















Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110000420
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