Application Receipt Date: 060922	

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: 060616
Discharge Received:     Date: 060721   
Chapter: 15    AR: 635-200
Reason: Homosexual Admission
RE:     SPD: JRB
Unit/Location: A Company 2nd Bn 19th Infantry Regiment Fort Benning, GA 31905 

Time Lost: None

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  881212  
Current ENL Date: 060413    Current ENL Term: 3 Years  16 weeks
Current ENL Service: 00 Yrs, 03 Mos, 09 Days ?????
Total Service:  00  Yrs, 03 Mos, 09 Days ?????
Previous Discharges: None
Highest Grade: E1
Performance Ratings Available: Yes    No 
MOS: None   GT: 100   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: None
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:
      Evidence of record shows that on 16 June 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 15, AR 635-200, by reason of homosexual admission (voluntarily admitted to being a homosexual, he created a rebuttable presumption that indicates he engage in, attempt to engage in, or have a propensity to engage in, or intend to engage in homosexual or bisexual acts), with an uncharacterized discharge.  The applicant admitted to his company commander in a sworn statement that he was a homosexual, and due to the harrassment in his platoon felt it best if he was separated from the Army.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in his own behalf.  0n 28 June 2006, the applicant again consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than uncharacterized or honorable, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with service uncharacterized.  On 8 July 2006, the separation authority approved the applicant's discharge and directed that he be discharged with service uncharacterized.  

      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, the issues and documents he submitted, the analyst recommends that relief be denied in this case.  The analyst noted that the applicant was in an entry level status at the time the unit commander initiated separation action under the provisions of Chapter 15, AR 635-200 by reason of homosexual admission with an uncharactertized separation of service. The applicant admitted to his company commander in a sworn statement that he was a homosexual, and due to the harrassment in his platoon felt it best if he was separated from the Army.  A Soldier is in entry-level status (ELS) for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the soldier a probationary period.  Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when his separation is initiated while the Soldier is in entry level status.  Furthermore, for Soldiers in entry-level status, a fully honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  The analyst determined that no such unusual circumstances were present in the applicant’s record and his service did not warrant an honorable discharge.  Further, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” can not be waived and the applicant is no longer eligible for reenlistment.  Therefore, the analyst determined that the narrative reason for discharge was both proper and equitable. 
      
      
      
      
      
      
      
      
      
      
      
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 15 May 2007              
Location: Tampa, FL

Did the Applicant Testify?  Yes     No  

Counsel: yes [redacted]

Witnesses/Observers: No 

Exhibits Submitted: None




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     No change    (Character)
		 			       	Change     No change    (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, hearing his testimony, and considering the analyst’s recommendation and rationale, the Board determined that the narrative reason for  discharge was both proper and equitable, voted not to change it.





















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: None
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: 


MARY E. SHAW				DATE: 21 May 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060013465

Applicant Name:  Mr.        
______________________________________________________________________


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