Applicant Name: 

Application Receipt Date: 070815	

Prior Review    Prior Review Date: None

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

Issues: I feel that our country's national defense is being hurt.  With the current war overseas I feel that I could be a bigger asset to the United States because they need prior trained Soldiers and combat experience.  Also, with currently losing a lot of Soldiers I feel I would cost the government less money by already being trained.

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: 070105
Discharge Received:     Date: 070322   
Chapter: 15    AR: 635-200
Reason: Homosexual Conduct (Admission)
RE:     SPD: JRB
Unit/Location: A Btry, 1-77 FA, Fort Sill, OK 73503 

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
Year/Month:  8507  
HOR City, State: West Plains, MO 
Current ENL Date: 040506    Current ENL Term: 3 Years  Item 12a on the applicant's DD Form 214, date entered active duty this period is incorrect, should read 040506.
Current ENL Service: 02  Yrs, 11 Mos, 15 Days ?????
Total Service:  02  Yrs, 11 Mos, 15 Days ?????
Previous Discharges: None
Highest Grade: E-4
Performance Ratings Available: Yes    No 
MOS: 13M10 MLRS/HIMARS Crewmember   GT: 114   EDU: HS Grad   Overseas: NIF   Combat: Dates NIF
Decorations/Awards: AAM, NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 4 May 2006, the applicant stated to the unit commander that while on leave he became aware of being bisexual.  He said that he did not have sexual intercourse with any members of the same sex while on leave and was comfortable with being bisexual.  He further stated his reason for coming out is that he did not like being discriminated against and requested an honorable discharge to remove himself from the discrimination.  On 8 May 2006, during the Commander's Inquiry the applicant reiterated his sexual orientation as bisexual.  On 5 January 2007, 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 for making a statement that he was a homosexual or bisexual.  On 4 May 2006, the applicant stated in a written statement that he was bisexual and on 8 May 2006, he restated to his commander during the Commander's Inquiry his sexual orientation as bisexual.  He created a rebuttable presumption which indicates he engage in, attempted to engage in, or have a propensity to engage in, or intend to engage in homosexual acts, with an honorable discharge.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily requested consideration of his case by an administrative separation board and submitted 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 an honorable discharge.  On 26 February 2007, the senior commander requested that the applicant's case be heard by a standing administrative separation board.  On 2 March 2007, the separation authority approved the senior commander's request.  The findings and recommendations of the administrative separation board are not part of the available record and the analyst presumed Government regularity in the discharge process.  On 15 March 2007, DA, U.S. Army Installation Management Command, HQ, U.S. Army Garrison, Fort Sill, Fort Sill, Oklahoma, discharged the applicant from the Regular Army, effective date:  22 March 2007.  
      
      
      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 found no mitigating factors that would merit a change to the narrative reason for discharge.  The analyst noted that the applicant admitted to his unit commander on 4 May 2006, in a written statement that he was bisexual and on 8 May 2006, he restated to his commander during the Commander's Inquiry his sexual orientation as bisexual.  The unit commander appropriately initiated discharge proceedings under the provisions of Chapter 15, AR 635-200.  Furthermore, the analyst noted the applicant's issue; however, the narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of paragraph 15, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Homosexual Admission" and the separation code is "JRB."  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.  Additionally, 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.  In view of the foregoing, the analyst determined that the narrative reason for discharge remains both proper and equitable and recommends to the Board to deny relief.
      
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 28 August 2008              
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: 	       	Proper	 	Improper	
						Equitable	 	Inequitable	

DRB voting record:  		      Change 0    No change 0   - 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 narrative reason for discharge was both proper and equitable and voted to change it.  


















 


 

								        
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: 

EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


CHRISTINE U. MARTINSON			DATE: 9 September 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070011293
______________________________________________________________________

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