PART II - APPLICATION DATA

      (Note: Part I deleted under the Privacy Act on Reading Room copy)

1.  Character of Discharge:  Under Other Than Honorable Conditions

2.  Date of discharge (or REFRAD):  030313

3.  Authority for separation:

      a.  Regulation:  Chapter 10, AR 135-178 and Paragraph 8-26h, NGR 600-
200

      b.  Reason:  Homosexual Conduct

4.  Prior review(s):  NONE



                         PART III - SERVICE HISTORY

                 SECTION A - Period of Service Under Review

1.    Service data:                              2.  Awards and
    decorations:
                                           NONE
    a.  Period entered for:  1 Year
    b.  Entry date:  020623
    c.  Age:  38 Years   DOB:  631111


    d.  Educational level:  NIF


    e.  Aptitude area score:
          GT:  95                                3.  Highest grade
achieved:
    f.  Length of Service:                         E3
          0 Year(s)  8 Month(s)  20 Day(s)


                                               4.  Performance evaluations:

                                                   NONE

                         PART III - SERVICE HISTORY
           SECTION A - Period of Service Under Review - Continued

5.  Periods of unauthorized absence:  NONE

    Status       Inclusive dates
      AWOL

      Mil conf

      Civil conf

      Other


6.  Nonjudicial punishment:  NONE

      Date  Offense(s)



7.  Court-Martial data:  NONE

      a.  SCM:
            Date   Offense(s)


      b.  SPCM:
            Date   Offense(s)


      c.  GCM:
            Date   Offense(s)


8.    Remarks:  NONE


                       SECTION B - Prior Service Data


Other discharge(s):

      Service    From  To    Type Discharge
      USN   801124     880219     Honorable







                         PART IV - PREHEARING REVIEW

                       SECTION A-ANALYST’S ASSESSMENT
l.  Facts and Circumstances:

      a.  Evidence of record shows that on 23 June 2002, the applicant
enlisted in the Arizona Army National Guard and as a Reserve of the Army
for a period of one (1) year.  All the specific facts and circumstances
leading to the applicant’s discharge are not contained in the available
records.  The available evidence of record shows that on 10 March 2003, the
unit commander initiated separation action against the applicant under the
provisions of Chapter 8, Paragraph 8-26h, NGR 600-200 and Chapter 10, AR
135-178, by reason of a self-disclosed admission of homosexual conduct,
with an under other than honorable conditions discharge.  The applicant was
advised of his rights, waived appearance before an administrative
separation board, and waived his right to consult with legal counsel.  The
record contains a properly constituted NGB Form 22 (Report of Separation
and Record of Service).  His NGB Form 22 indicates that he was discharged
under the provisions of Chapter 8-26h, NGR 600-200 by reason of homosexual
conduct, with a characterization of service of under other than honorable
conditions.  The record also contains a Department of Emergency and
Military Affairs, Division of Military Affairs (Army), Office of the
Adjutant General, Arizona, Orders 33-26, dated 13 March 2003, discharging
the applicant from the Arizona Army National Guard and as a Reserve of the
Army, effective 13 March 2003.

      b.  On 3 March 2003, the applicant was discharged.  At the time of
discharge, the applicant had completed 8 months and 21 days of active
military service in the period under review and had a total of 7 years, 2
months and 26 days of total military service.

2.  Legal/Regulatory Basis for Separation Action:  Army Regulation 135-178
sets forth the basic authority for the separation of Reserve enlisted
personnel.  Chapter 10 of that regulation states that active homosexuality
is incompatible with military service and provides, in pertinent part, for
the separation of members who actively engage in homosexual conduct or who,
by their statements, demonstrate a tendency to engage in homosexual
conduct.  Army regulation states that when the sole basis for separation is
homosexuality, a discharge under other than honorable conditions may be
issued only if such characterization is warranted when there is 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 will reflect the character of the
soldier’s overall record of service.

                      SECTION B-APPLICANT’S SUBMISSIONS


1.  Issue(s) of propriety and/or equity submitted by applicant or counsel.
    As stated on applicant’s DD Form 293.
2.  Exhibit(s) submitted:

      A-1:  DD Form 293, dated 040410, with three (3) enclosure(s).
      A-2:  Counsel Issues:  NONE
      B-l:  Other Documents: NONE
                   PART IV - PREHEARING REVIEW (CONTINUED)

              SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor      ( ) Legal Advisor



      a.  Medical prehearing comments (if applicable):


      b.  Legal prehearing comments (if applicable):











                         PART V - SUMMARY OF HEARING

                      SECTION A-Attendees and exhibits

1.  Review/hearing information:


      a. Type requested:
         ( X ) Records review             (   ) Hearing

      b. Type Held:
         ( X )Records review              (   ) Hearing
                                          (   ) Tender Offer

      c. Review/hearing location and date:  Washington, D.C. on 15 December
2004.

      d. Appearance by:
         Applicant                 (   ) Yes   ( X ) No
         Counsel                   (   ) Yes   ( X ) No

      e.  Applicant testified:     (   ) Yes   ( X ) No

      f.  Counsel presentation:    (   ) Yes   ( X ) No

      g.  Witness(es) testified:   (   ) Yes   ( X ) No

2.  Exhibit(s) submitted at hearing:
                        PART VI - ISSUES AND FINDINGS

1.  a.  Applicant's issue(s) of propriety and/or equity:

          ( X )  Same as those listed on DD Form 293 and Part IV, Section A
              of this case report and directive.
          (   )  Revised issue(s) furnished in writing by applicant as
              follows:
          (   )  Additional issue(s) identified during review/hearing as
              follows:

      b.  Request:  ( X ) Recharacterization     (   ) Change of Reason

2.  Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on
issues of propriety and/or equity:

      a.  Propriety:   The parenthetical number(s) below correspond(s) to
                   the issue number(s) on the DD Form 293, or in Part VI,
                   Paragraph 1, above.

        (1)  The issue is rejected.  The Board carefully examined the
applicant’s available record of service during the period of enlistment
under review.  The Board noted that the applicant admitted to homosexual
conduct and the unit commander properly initiated discharge proceedings
under the provisions of Chapter 10, AR 135-178.  In the absence of evidence
to the contrary, the Board was compelled to presume government regularity
in the discharge process.  The applicant provided no independent
corroborating evidence demonstrating that the command’s action was
erroneous.  The Board found no evidence of arbitrary or capricious actions
by the command.  The Board was satisfied that all requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.  The Board, being convinced that the
reason for discharge and the characterization of service were both proper
and equitable, voted to deny relief.

      b.  Equity:      The applicant has not submitted an issue of equity
                   and the ADRB has not otherwise relied upon an issue of
                   equity to change the discharge.  The major factors upon
                   which the discharge was based are set forth in Parts III
                   and IV of this decisional document.

3.  Response(s) to item(s) not addressed as decisional issue(s):  NONE

                           PART VII - BOARD ACTION
                   SECTION A - Conclusions/Decisions/Vote

1.    Board conclusion(s):

      The discharge was:

      ( X ) Proper.
      (   ) Improper as to characterization.  Change characterization to
                                               .
      (   ) Improper as to reason.  Change reason to
                                   under                      .

      ( X ) Equitable.
      (   ) Inequitable as to characterization.  Change characterization to
                                         .
      (   ) Inequitable as to reason.  Change reason to
                                 
            under                                 .
      (   ) Both proper and equitable, but characterization/reason for
           separation cited was an administrative/clerical error and should
           be changed to                      under
                                   .

2.  Voting record:      Change   No Change
                  Reason       0         5
    Characterization       0         5

        The names and votes of the members of the Board are recorded in
Part IX of this document and can be obtained by writing to the address
below.  The request must contain the CASE NO. located in the upper right
corner of this document.

                  Department of the Army Review Boards Agency
                  ATTN:  Promulgation Team
                  1901 South Bell Street, 2nd Floor
                  Arlington, VA  22202-4508



3.  Minority views:  NONE
                           PART VII - BOARD ACTION
                 SECTION B - Verification and Authentication

Case report reviewed and verified

                          
Ms. McKim-Spilker
Case Reviewing Official

                     PART VIII - DIRECTIVE/CERTIFICATION
                            SECTION A - DIRECTIVE

                                    NONE

                          SECTION B - CERTIFICATION

Approval Authority:


ROBERT L. HOUSE
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:




MARY E. SHAW
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge                  C - Other
B - Material submitted by applicant

INDEX RECORD:

AR Number:  20040000482                   INDEX NUMBERS:  A0143
Date of Review:  041215                                   A9500
Character of Service:  UD
Date of Discharge:  030313
Authority:  AR 135-178 C10
Reason:  A6500
Results of Board Action/
Vote/Affirmation:  NC 5-0 A













                           PART IX - VOTING RECORD

    Name                                   Reason          Characterization
                                           CHANGE   NC     HON  UHC   NC
UNCHAR

    1.      Mbr          X                 X       

    2.      Mbr          X                 X       

    3.      Mbr          X                 X       

    4.      Mbr          X                 X       

    5.      PO           X                 X