BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140001712 


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 redaction of erroneous portions of the commander's separation memorandum; an upgrade of the character of service of his discharge to honorable; and correction of the narrative reason for separation to "Secretarial Authority," the separation code to "JFF," and the reentry (RE) code to "1."

2.  The applicant states he reenlisted in the Regular Army (RA) on 22 September 2003 and that is the period of service that is the subject of his application.

   a.  He was serving in the rank of staff sergeant (SSG)/pay grade E-6 as a squad leader and team leader for Soldiers in a Heavy Transportation Company.  During many months of service in Iraq, the unit was subjected to fire from mortars, improvised explosive devices, and small arms.  He adds that he was awarded the Army Commendation Medal for his service in Iraq.

   b.  On 14 October 2005, Master Sergeant (MSG) Jerry S----, Senior Group Career Counselor, sent an email message to the senior career counselor at the applicant's gaining command (Europe Regional Medical Command, Heidelberg, Germany) commenting on the applicant's successful performance of duty as a career counselor.  MSG S---- stated he had been the applicant's supervisor for over one year and the applicant provides service to three battalion-level retention programs totaling over 800 enlisted Soldiers.  He strongly endorsed his duty performance and highly recommended him as an asset to the new organization.

   c.  On 31 October 2005, the applicant's commander confronted him with the allegation of having committed a homosexual act.  He states, the "single incident" that was the basis for the discharge action was a private and discreet consensual act between adults (i.e., the applicant and his superior noncommissioned officer (NCO), Sergeant First Class (SFC) R-----).  It occurred in the privacy of the NCO's closed office, after hours, and without anyone else's knowledge.  He states the office was a "location under military control"; however, it was in a building located at a remote site on the installation and most of the other nearby buildings were vacant at the time.

   d.  His commander confronted him with a photograph depicting the homosexual act, that occurred on 4 April 2005, and was photographed by the NCO.  However, nothing in the photograph identified the person pictured as a Soldier in the U.S. Army.

   e.  Immediately after being confronted by his commander, he was removed from his job as a career counselor, isolated from his fellow Soldiers, and ordered to work as a janitor.  His activities on the installation were limited during the day. The commander did not provide or offer him any rehabilitation measures.  In fact, the command ostracized and isolated him during the separation process.  For approximately 3 months he dutifully complied with the orders he was given and he did not "engage in repeated conduct, after formal counseling."
   
   f.  The commander's separation memorandum erroneously states, "Soldier has been counseled and through subsequent behavior, has demonstrated a lack of acceptance and rehabilitative measures."  He adds this is untrue.  There were no rehabilitative measures provided to him, and there was no "subsequent behavior" by him that demonstrated a lack of acceptance of rehabilitative measures.  It also erroneously states, "Soldier has demonstrated through repeated conduct, after formal counseling, that other disposition would be inappropriate."  This is also untrue.  There was no "repeated conduct, after formal counseling" that shows other disposition was inappropriate.

   g.  Subsequent to his discharge he continued to support the U.S. Army and its values.  His wife of 20 years, who stood by him when he was discharged and continues to stand by him, has served for 8 years in the U.S. Army Reserve and is currently serving in the rank of captain as a highly specialized certified registered nurse anesthetist.  He adds that he cared for their three sons during his wife's two deployments following his discharge.

   h.  Since his discharge he has completed a bachelor's degree in business administration and he has been hired as a staffing consultant by Pace Staffing Network.  In 2007, he and his wife relocated their family to western New York where he obtained a senior marketing position with Fisher-Price.  In 2013, he enrolled in the registered nursing program of Trocaire College in Buffalo, New York, and he expects to graduate in 2015.  His goal is to work as a registered nurse and continue toward the goal of supporting veterans.

   i.  He adds that he has continued to volunteer to improve his community at local nursing homes and retirement facilities, and he has worked at two Habitat for Humanity projects in the inner city of Buffalo.  He also serves as a member of local chapter of River Keepers where they work to clean up and preserve the waterways of western New York.  He concludes that during his military service and thereafter he consistently acted honorably with respect to the U.S. Army.

3.  The applicant provides a Brief to the Board (summarized above) and copies of an email message (also summarized above), his college diploma, and two character reference letters.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show redaction of erroneous portions of the commander's separation memorandum; an upgrade of the character of service of his discharge to honorable; and correction of the narrative reason for his separation to "Secretarial Authority," the separation code to "JFF," and the RE code to "1."

2.  Counsel states the Army Discharge Review Board (ADRB) denied the applicant's request for relief in the form of an upgrade of the characterization of his service and change to the narrative reason for separation and this application appeals the ADRB's decision.

   a.  The ADRB, by majority decision, did not state the specific reasons for denying the applicant's request.  It considered the analyst's recommendation and rationale; however, the analyst's rationale and the majority decision constitute error because evidence submitted with this application confirms the honorable nature of the applicant's service through 14 October 2005.  In addition, the record does not contain a "finding" that the applicant's conduct that gave rise to the discharge "had, or was likely to have had an adverse impact on discipline, good order, or morale due to the close proximity of other members of the Armed Forces," and because the analyst erroneously relied upon speculation in this respect.  Moreover, the Army and the ADRB have characterized service as honorable service for other Soldiers who have records of multiple instances of indiscipline or where the record shows aggravating circumstances not present in the applicant's case.


   b.  Counsel states the applicant had completed more than 16 years and
7 months of military service at the time of his discharge and almost 12 years and 5 months of active duty service.  He had been promoted many times, achieved the rank of SSG (E-6), and successfully served in Iraq for over one year.  His awards included the Army Commendation (5th Award), Army Achievement Medal (3rd Award), Army Good Conduct Medal (3rd Award), and numerous service medals and badges.  In addition, his performance evaluation reports during the period 1996 to 2005 document an unblemished record of excellent performance.  He notes the applicant's records do not contain a performance evaluation report subsequent to February 2005 and that report was not completed/signed by the rating officials until 22 April 2005 (i.e., after the 4 April 2005 incident which gave rise to the discharge).  In addition, Command Sergeant Major Robin S----------, the senior rater, expressly recommended the applicant for promotion.

   c.  The applicant's record contains no instances of indiscipline (i.e., judicial or nonjudicial punishment) and no evidence of adverse counseling, except that of 31 October 2005.  In fact, his duty performance was reported as excellent by his immediate supervisor (as of 14 October 2005) just two weeks before he was confronted by his commander (on 31 October 2005) regarding the homosexual act allegation.

   d.  The applicant's last enlistment, which began on 22 September 2003, is the subject of this application.

   e.  The ADRB did not have available to it the new evidence of the applicant's excellent performance from February 2005 to 14 October 2005 as established by the email of MSG Jerry S----.  It also did not have information regarding the applicant's award of the Army Commendation Medal for the period 1 February 2003 to 2 April 2004.

   f.  The ADRB analyst's opinion 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" is purely "ipsi dixit" (i.e., "he himself said it," meaning the only proof we have of the fact is that this person said it), and is directly contradicted by MSG S-----'s email.  In fact, two members of the ADRB disagreed with the analyst's opinion and voted to upgrade the discharge to honorable.

   g.  Counsel asserts that the "single incident" referenced by the ADRB analyst was a private consensual act between adults -- the applicant and a superior NCO. While it occurred in a "location under military control," the location was remote and discreet, in the privacy of the NCO's closed office, and it occurred after hours without anyone else's knowledge.  It did not occur in "close proximity of other members of the Armed Forces" and was not "likely to have had an adverse impact on discipline, good order, or morale due to close proximity of other Soldiers of the Armed Forces."

   h.  The photograph that the applicant's commander confronted him with, on
31 October 2005, depicting the homosexual act was not photographed by the applicant; it was photographed by the applicant's superior NCO.  Nothing in the photograph identified the person pictured as a Soldier in the U.S. Army and there is no evidence of any misconduct on the part of the applicant, such as publishing the photograph or representing it as a depiction of the act of a Soldier in the 
U.S. Army.

   i.  The commander's separation memorandum (as stated by the applicant in his statement, above), is erroneous and not supported by evidence.  Specifically, the applicant was not previously counseled with respect to homosexual conduct, his subsequent behavior did not demonstrate a lack of acceptance of rehabilitative measures, and he did not demonstrate through repeated conduct after formal counseling that other disposition would be inappropriate.

   j.  In fact, the only counseling the applicant received was on 31 October 2005.  There is no evidence of previous counseling with respect to homosexual conduct, which the applicant was advised of by the commander for the first time on 
31 October 2005.  In addition, during his counseling, the applicant indicated his desire to remain in the Army and that he had no intention of engaging in further homosexual conduct or disclosing it, and there is no record of any act of repeated misconduct.  Moreover, once confronted, the record shows the separation action commenced immediately.

   k.  The commander did not provide or offer any "rehabilitative measures" and, as a practical matter, the command ostracized and isolated the applicant as the separation process proceeded.

   l.  Counsel adds that, subsequent to the applicant's discharge, he continued to support the U.S. Army and its values.  (Counsel provides a summary of the applicant's post-service conduct and achievements similar to that outlined by the applicant in his statement, above).

   m.  Counsel provides an analysis of the separation authority under which the applicant was discharged, including the characterization of service.  He notes that characterization is based upon the quality of the member's service; the quality of service will be determined according to standards of acceptable personal conduct and performance of duty; as a general matter, characterization will be based upon a pattern of behavior rather than an isolated incident; and the Soldier's performance of duty must be accurately evaluated based on the overall period of service and not on any isolated actions.  He also notes that there are certain circumstances in which the conduct and performance of duty reflected in a single incident provides the basis for characterization.  However, the regulation twice emphasizes that the characterization of service should not be based on "an isolated incident" or "any isolated actions."

   n.  Counsel states that Department of Defense (DoD) policy now provides that "Service members will no longer be subject to administrative separation based solely on legal homosexual acts, a statement by a Service member that he or she is a homosexual or bisexual (or words to that effect)."  Counsel also refers to the DoD "Don't Ask Don't Tell" ("DADT") policy that Service members discharged under the policy should normally be granted correction of military records to "recharacterize the discharge to honorable," to "change the narrative reason for discharge… to 'Secretarial Authority'," and to change the reentry code to "an immediately eligible to reenter category."  He adds that, "Where the original discharge, such as that at issue here, was based solely on the DADT, the Board should normally grant the applicant the foregoing corrections, unless there is evidence of aggravating factors in the record (e.g., misconduct)."  Counsel states Army Review Boards Agency Docket Number AR 20110025049, dated 24 May 2012, was a similar case involving a "single incident" of misconduct.

   o.  Counsel states, "There has only been one occurrence of homosexual activity" in this case and there's no evidence of misconduct subsequent to that activity.  Counsel also points out the separation memorandum specifies, in part, "…another person to engage in…" and notes the term "person" is singular.  He adds the record is devoid of any factual basis that the applicant photographed the acts, distributed photographs, or solicited others via the Internet or otherwise.  The fact that the ADRB relied upon such erroneous information constitutes an injustice.
   
   p.  The record fails to disclose how the applicant's commander actually obtained the photographs, nor does the record reflect an effort by the commander to use any evidence at the time to dispute the applicant's sworn statement that, "There has only been one occurrence of homosexual activity."

   q.  Counsel concludes by stating, "A review of the Board's decisions in recent years reveals many instances showing that the Army has characterized as "Honorable" the discharges of soldiers with records of multiple instances of indiscipline far less deserving of that characterization of their service as compared to the Applicant's service."

3.  Counsel provides no additional documentary evidence.
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant had prior honorable enlisted service in the Army National Guard of the United States and Utah Army National Guard from 13 March 1989 through 6 October 1993.  He was awarded military occupational specialty 88M (Motor Transport Operator).

3.  He enlisted in the RA on 7 October 1993 and continued to serve on active duty through a series of reenlistments, the last one occurring on 22 September 2003 for an indefinite period.  He was promoted to SSG (E-6) on 1 January 2002 and he served in Iraq from 14 February 2003 to 1 April 2004.  He was assigned to Headquarters and Headquarters Company (HHC), 593rd Corps Support Group (CSG), Fort Lewis, WA, on 2 April 2004. 

4.  A review of the applicant's Official Military Personnel File revealed a:

   a.  DA Form 4980-14 (Army Commendation Medal Certificate) that awarded him the Army Commendation Medal (5th Award) for meritorious achievement as a Heavy Wheeled Vehicle Driver from 1 February 2003 to 2 April 2004.

   b.  DA Form 2188-8 (NCO Evaluation Report (NCOER)), for the period March 2004 through February 2005.
   
    	(1)  The rater rated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Among the Best."  The senior rater rated his overall performance as "Successful (1)" and overall potential for promotion and/or service in positions of greater responsibility as "Superior (1)."

    	(2)  The reviewer indicated that he concurred with the rater and senior rater evaluations.

    	(3)  The rater, senior rater, reviewer, and rated NCO (applicant) signed the NCOER on 22 April 2005.

5.  On 31 October 2005, the company commander conducted initial counseling with the applicant regarding homosexual conduct.

   a.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), completed at 1321 hours on 31 October 2005, shows the company commander informed the applicant that she wanted to question him about the homosexual conduct of which he was suspected/accused.  She informed the applicant of his rights, the applicant indicated that he understood his rights, and indicated he was willing to discuss the offenses and make a statement without first talking to a lawyer or having a lawyer present.  The applicant, company commander, and a witness signed the form.

   b.  A DA Form 4856 (Developmental Counseling Form), dated 31 October 2005, shows the company commander counseled the applicant to inform him that the command had become aware of his participation in homosexual conduct.  She informed him that the command was contacted by the U.S. Army Criminal Investigation Command (CID) that passed to the command files graphically depicting the applicant engaged in homosexual behavior with another man.  She advised him that such conduct was grounds for separation and she provided an explanation of the terms "homosexual conduct," "homosexual act," "homosexual statement, " and "homosexual marriage."  She also informed him that "you must attend mental, health, and education counselings" and she provided him with information related to his scheduled appointments.

   c.  A DA Form 2823 (Sworn Statement), completed at 1339 hours on 
31 October 2005, shows the questions the applicant was asked by the company commander and the applicant's responses.  It shows, in pertinent part, that the applicant admitted to engaging in homosexual/bisexual acts (i.e., oral sex with another man and that he had received and given oral sex).

   d.  HHC, 593rd CSG, Fort Lewis, WA, Memorandum for Record (MFR), dated 31 October 2005, subject:  31 October 2005, Counseling of (Applicant), shows the company commander prepared the MFR to capture the results of the initial counseling with the applicant.

    	(1)  It shows, in pertinent part, that when she first questioned the applicant he denied having ever been involved in homosexual activity.  However, upon producing photograph evidence (five pictures), the applicant acknowledged it was him who was pictured and engaged in fellatio in one of the photographs.  He then proceeded to answer the questions as the sworn statement indicates.
    	(2)  She also noted that in transferring the questions and answers to the sworn statement, she made an administrative error and excluded a portion of the interview.  The questions and answers established that the individual with whom the applicant was involved in homosexual activity was a senior NCO at the time, he had since retired from the U.S. Army, and the activity occurred in the NCO's office.

    	(3)  She added that the company first sergeant and applicant's supervisor (rater) were both witnesses to the counseling and questioning session.

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 1 November 2005, shows a Clinical Neuropsychologist at the Behavioral Health Clinic, Madigan Army Medical Center, evaluated the applicant at the commander's request.  He found the applicant fully alert and oriented, his mood unremarkable, thinking process clear, thought content normal, and memory good.  He also found that the applicant was mentally responsible for his behavior and could distinguish right from wrong.  It was his opinion that the applicant had the mental capacity to understand and participate in any administrative separation action or judicial proceedings.  Accordingly, he cleared the applicant for any administrative actions deemed appropriate by the command.

7.  A DD Form 2807-1 (Report of Medical History), completed by the applicant on 2 November 2005, shows he indicated that he had received both family and behavioral health care counseling.

8.  On 17 November 2005, the applicant's immediate commander notified him of her intent to initiate separation action against him in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 15 (Discharge for Homosexual Conduct).  The reasons for her proposed action were the applicant engaged in, attempted to engage in, or solicited another person to engage in a homosexual act or acts.  She also informed the applicant of his rights and the administrative process available to him, including his right to appear in person, with or without counsel, before an administrative separation board.  The applicant acknowledged receipt of the correspondence.

9.  On 23 November 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the procedures and rights that were available to him, and the type of discharge he could receive.  He:

* waived consideration of his case by an administrative separation board and also waived personal appearance before an administrative separation board, if his service was characterized no less favorably than honorable
* elected not to submit statements in his own behalf
* requested consulting counsel and representation by Fort Lewis, Trial Defense Service
* acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* acknowledged he understood that, if he received a discharge/character of service of less than honorable, he may make application to the ADRB or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded

10.  The intermediate commanders recommended approval of the applicant's separation with an under other than honorable conditions discharge.

11.  On 2 February 2006, the applicant consulted with legal counsel and he amended his Administrative Separation Board Conditional Waiver that he had submitted on 23 November 2005.  He waived consideration of his case by an administrative separation board and also waived personal appearance before an administrative separation board, if his service was characterized no less favorably than under honorable conditions.  The applicant and his defense counsel placed their signatures on the document.

12.  The intermediate commanders recommended approval of the applicant's separation with an under honorable conditions discharge.

13.  On 9 February 2006, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 15, and directed his service be characterized as general, under honorable conditions.

14.  His DD Form 214 (Certificate of Discharge or Release from Active Duty) shows he was discharged under honorable conditions (general) on 3 March 2006 under the provisions of Army Regulation 635-200,  paragraph 15-3a, based on homosexual (acts).  It also shows in:

* item 18 (Remarks):  "Continuous Honorable Active Service:  19930602-20030921"
* item 26 (Separation Code):  "JRA" (Homosexual Conduct (Acts))
* item 27 (Reentry Code):  "4" (nonwaivable disqualification; ineligible for reenlistment)

15.  The applicant submitted a request to the ADRB for a change to the character of service and reason for his discharge.  On 30 September 2011, the ADRB determined by unanimous vote (5 to 0) that the reason for the applicant's discharge was both proper and equitable, and by majority vote (3 to 2) that the character of his service was both proper and equitable.  Accordingly, the ADRB directed no change to the characterization, reason for discharge, or the RE code.

16.  In support of his application the applicant provides the following documents:

   a.  A Baker College diploma that shows the applicant received a Bachelor of Business Administration degree in September 2006.

   b.  Letter from Roger S--------, dated 3 January 2014, who knows the applicant from when he was serving as the Bishop of the congregation in April 2007.  He attests to the applicant's good character, reliability, organizational skills, and dedication to family.  He recommends the applicant for any position in which he might be considered.

   c.  Letter from Maxim L. S---------, dated 3 January 2014, who served in positions of leadership at his church and has witnessed the applicant's versatile and capable conduct over the past 4 years in a variety of capacities, including the Boy Scouts of America, Habitat for Humanity, and the Buffalo River Keepers.  He recommends the applicant for work within any field he may be eligible for and desires to be part of.

17.  The DADT policy was implemented in 1993 during the Clinton presidency.  This policy banned the military from investigating service members about their sexual orientation.  Under that policy, service members could be investigated and administratively discharged if they made a statement that they were lesbian, gay or bisexual; engaged in physical contact with someone of the same sex for the purposes of sexual gratification; or married, or attempted to marry, someone of the same sex.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 15 prescribed general policies concerning homosexual conduct, including statutory provisions, pertinent definitions, and commander guidelines for fact-finding inquiries.  

   a.  Paragraph 15-2 (Discharge policy) provides that homosexual conduct is grounds for separation from the Army under the criteria set forth in paragraph  15-3.  This includes pre-service, prior service, or current service homosexual conduct.  The term homosexual conduct includes homosexual acts, statement(s) that demonstrate a propensity or intent to engage in homosexual acts, or homosexual marriage or attempted marriage.  A statement that demonstrates a propensity or intent to engage in homosexual acts is grounds for discharge not because it reflects the Soldier's sexual orientation, but because the statement indicates a likelihood that the Soldier engages in, or will engage in, homosexual acts.

   b.  Paragraph 15-3  (Criteria for discharge) provides that, except as indicated, a Soldier will be discharged if one or more of the following findings has been made and is approved by the separation authority.

    	(1)  The Soldier has engaged in, attempted to engage in, or solicited another person to engage in, a homosexual act or acts unless there are further approved findings that – 

* such acts are a departure from the Soldier's usual and customary behavior
* such acts under all the circumstances are unlikely to recur
* such acts are not accomplished by the use of force, coercion, or intimidation
* under the particular circumstances of the case, the Soldier's continued presence in the Army is consistent with the interest of the Army in maintaining proper discipline, good order, and morale
* the Soldier does not have a propensity or intent to engage in homosexual acts

19.  Under Secretary of Defense (Personnel and Readiness), Washington, DC, memorandum, dated 20 September 2011, subject:  Correction of Military Records Following Repeal of Section 654 of Title 10, U.S. Code, provides that, effective 20 September 2011, Service Discharge Review Boards (DRBs) should normally grant requests to change the narrative reason for a discharge to "Secretarial Authority" (i.e., Army Regulation 635-200, paragraph 5-3) and the Separation Program Designator (SPD) code to "JFF" (Secretarial Authority).  It also shows that requests to re-characterize the discharge to honorable and/or to change the RE code to an immediately-eligible-to-reenter category (i.e., RE code "1") should normally be granted, if the original discharge was based solely on DADT or a similar policy in place at the time and there were no aggravating factors in the record, such as misconduct.

20.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel request redaction of erroneous portions of the commander's separation memorandum; an upgrade of the character of service of his discharge to honorable; and correction of the narrative reason for separation to "Secretarial Authority," the separation code to "JFF," and the RE code to "1."

2.  The applicant's DD Form 214 shows he enlisted in the Regular Army on          2 June 1993.

3.  He received an NCOER for the period March 2004 through February 2005.  Although the report was not completed/signed by the rating officials until 22 April 2005, which was after the 4 April 2005 incident which led to his discharge, it would not have been appropriate to comment on any conduct or behavior that occurred after the period of the report (i.e., 28 February 2005).  As such, this also applies to the senior rater's recommendation for promotion.  Thus, it may be concluded that this was an accurate and objective assessment of the applicant's duty performance through 28 February 2005.

4.  On 14 October 2005, the applicant's rater commented on the applicant's successful duty performance as a career counselor and he highly recommended the applicant to his next command.  The rater's comments were made before any evidence of the 4 April 2005 incident became known to the command.  Thus, it may be concluded that this was an assessment of the applicant based only on information that was known to his rater at that point in time (i.e., absent knowledge of the 4 April 2005 incident (emphasis added)).

5.  The evidence of record shows the company commander learned of the applicant's homosexual behavior from CID on 24 October 2005.  On 31 October 2005, the commander interviewed the applicant and he initially denied being involved in any homosexual activity.  She then presented the applicant with files graphically depicting him engaged in homosexual behavior with another man. She also advised him that participation in such homosexual conduct was grounds for separation.  Then, in a sworn statement, the applicant admitted to engaging in homosexual acts.  

6.  The evidence of record shows the company commander informed the applicant that he must attend mental, health, and education counselings.  The evidence of record also shows the applicant received mental health, behavioral counseling, and family counseling.  In addition, the applicant indicated that he would not engage in homosexual acts in the future.  Thus, the evidence of record refutes the contention that there were no rehabilitative measures.

7.  The statements, "Soldier has been counseled and through subsequent behavior has demonstrated a lack of acceptance and rehabilitative measures" and "Soldier has demonstrated through repeated conduct, after formal counseling, that other disposition would be inappropriate" appear in the commander's memorandum recommending the applicant for separation.  The applicant had an opportunity to challenge this evidence (and any other evidence) at an administrative separation board.  However, he twice elected to waive his right to an administrative separation board where he could challenge allegations and evidence.  He did this first in exchange for an honorable discharge, and then in exchange for an under honorable conditions discharge.  Moreover, the evidence of record shows the applicant elected not to submit any statements on his own behalf regarding matters related to the discharge action.  Therefore, evidence the command would have presented, particularly if challenged by the applicant, cannot be determined by this Board.  Thus, the Board presumes regularity with respect to the accuracy of the two statements in the commander's memorandum.

8.  Therefore, in view of the foregoing, the evidence of record does not support the granting of relief with respect to the request for redaction of specific portions of the commander's separation memorandum.

9.  The evidence of record shows the applicant submitted a conditional waiver, if his service was characterized as no less favorable than honorable.  However, the company commander and two intermediate commanders recommended the applicant's service be characterized as under other than honorable (emphasis added).  The applicant then submitted a conditional waiver (that amended his initial conditional waiver).  He conditionally waived his right to an administrative separation board, if his service was characterized as no less favorably than under honorable conditions.  At that point in time, the intermediate commanders recommended a general, under honorable conditions discharge.  Thus, the evidence of record refutes counsel's contention that the ADRB analyst's finding regarding the applicant's character of service was without basis/ based only on opinion.

10.  Therefore, in view of all of the foregoing, it is concluded that the applicant's discharge proceedings were conducted in accordance with laws and regulations in effect at the time with no indication of procedural error.

11.  However, DoD policy has since been changed and current standards may be applied to previously-separated Soldiers as a matter of equity.  When appropriate, Soldiers separated for homosexuality/bisexuality should now have the authority and reason for discharge changed, along with the SPD code, and the RE code should normally be changed to an immediately-eligible-to-reenter category.

12.  Therefore, in view of the foregoing, the applicant's DD Form 214 should be corrected to show he was honorably discharged with "Secretarial Authority" as the narrative reason for separation with an SPD code of "JFF" (Secretarial Authority) and an RE code of "1" (Eligible for Enlistment/Reenlistment). 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  __X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his 3 March 2006 DD Form 214 and issuing a new DD Form 214 to show he was honorably discharged by reason of "Secretarial Authority" with an SPD code of "JFF" and an RE code of "1." 

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to redaction of portions of the commander's separation memorandum.



      _______ _  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)                                         AR20140001712



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ABCMR Record of Proceedings (cont)                                         AR20140001712



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