Application Receipt Date: 060808	

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293.

II.  Were Proper Discharge and Separation Authority procedures followed?  
Yes    No        Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: 021223
Discharge Received:     Date: 030212   
Chapter: 15    AR: 635-200
Reason: Homosexual Act
RE:     SPD: JRA
Unit/Location: HHC, 505th Quartermaster Battalion, Unit 35130, APO AP 96376-5130 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 020610-Dereliction of duty x 2, willfully failed to remove earrings while on post, (020517), negligently failed to remain where he could be contacted while on 24-hour recall status, on or about (020302) and on or about (020307), without authority, failed to go to his appointed place of duty at the time prescribed, between on or about (020114) and on or about (020122), on three separate occasions, (Company Grade).

The suspension of punishment of reduction to PV2, forfeiture of $272.00 pay, imposed (020610), was vacated (021115), for the following offense, without authority, failed to go at the time prescribed to his appointed place of duty.   

Court-Martials (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  820519  
Current ENL Date: 010131    Current ENL Term: 6 Years  ?????
Current ENL Service: 02 Yrs, 00 Mos, 12 Days ?????
Total Service:  02  Yrs, 00 Mos, 12 Days ?????
Previous Discharges: None
Highest Grade: E3
Performance Ratings Available: Yes    No 
MOS: 71L10 Administrative Spec   GT: 98   EDU: HS Grad   Overseas: Japan   Combat: None
Decorations/Awards: NDSM, ASR
V.  Post-Discharge Activity
Home of Record: 
Current Address: 
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 24 October 2002, the applicant met with the unit chaplin, unit commander and the first sergeant, and stated that he had homosexual tendicies, had never committed any acts while in the military, but was finding it very difficult not to committ the acts.  The applicant stated he would like to be chaptered out of the Army.  On 23 December 2002, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 15, AR 635-200, by reason of pattern of misconduct, (he admitted by his own accord that he has homosexual tendicies and plan to engage in a homosexual lifestyle.  He created a rebuttable presumption that indicates he engage in, attempt to engage in, attempted to engage in, or have a propensity to engage in, or intend to engage in homosexual or bisexual acts.  He has the burden to present evidence to refute this presumption, should he so desire), with an honorable discharge.  He was advised of his rights.  The applicant waived legal counsel, was advised of the impact of the discharge action, and voluntarily waived consideration of his case by an administartive separation board.  The applicant  did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  On 24 January 2003, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a general, under honorable conditions discharge.
      The analyst noted that the unit commander initiated separation action under the provisions of Chapter 15, AR 635-200,for a pattern of misconduct, which is incorrect.   Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation governs the separation of enlisted personnel that has made a statement that he or she is a homosexual or bisexual, words to that effect.   

      b.  Legal Basis for Separation:  
      Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 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 in accordance with chapter 3, section III, and if 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.
      

      c.  Response to Issues, Recommendation and Rationale:  
      After a careful review of all the applicant’s military records during the period of enlistment under review and the issue he submitted, the analyst finds no mitigating factors that would merit an upgrade of the applicant's discharge.  The analyst noted that the applicant met with the unit chaplin, unit commander and the first sergeant, and stated that he had homosexual tendicies, had never committed any acts while in the military, but was finding it very difficult not to committ the acts.  The applicant stated that he would like to be chaptered out of the Army.  The unit commander properly initiated discharge proceedings under the provisions of Chapter 15, AR 635-200.  The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the analyst determined that the reason for discharge and the characterization of service remains both proper and equitable.    

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 8 August 2007              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA




VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change 4    No change 1   - Character
		 			      Change 0    No change 5   - Reason
					      (Board member names available upon request)

IX.  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 characterization of service was too harsh, and as a result it is inequitable. The Board found that the length of the applicant's service, and the circumstances surrounding his discharge, mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and change the narrative reason to " homosexual admission" with the corresponding separation code of "JRB."

















Case report reviewed and verified by: Mr. Kenneth McFarley, Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: "Homosexual Admission" under provisions of Chapter 15, AR 635-200.
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: None

XI.  Certification Signature and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


CHRISTINE U. MARTINSON				DATE: 22 August 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060011569

Applicant Name:  Mr.        
______________________________________________________________________


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