Applicant Name: ?????

Application Receipt Date: 070827	

Prior Review    Prior Review Date: None

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

Issues: Throughout my 4 1/2 years of military duty I served with dignity and pride. I worked very hard and always strived to become a better soldier. I never got in any trouble and was always in good standings to my knowledge with my unit and commanders. Not being discharged with an honarable discharge saddend me. I feel that all the hard work, energy and time I put in for my country didn't mean anything when I received an "other than honorable discharge." It would mean alot to me and my family if my discharge was upgraded to an Honorable.

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: 040831
Discharge Received:     Date: 041008   
Chapter: 15    AR: 635-200
Reason: Homosexual Admission
RE:     SPD: JRB
Unit/Location: A Co, 26th FSB, Fort Stewart, GA 31314 

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:  8204  
HOR City, State: Bronx, NY
Current ENL Date: 021105    Current ENL Term: 2 Years  ?????
Current ENL Service: 01 Yrs, 11 Mos, 04 Days ?????
Total Service:  04 Yrs, 02 Mos, 28 Days ?????
Previous Discharges: RA-0000711-021104/HD
Highest Grade: E-4
Performance Ratings Available: Yes    No 
MOS: 55B10 Ammunition Specialist   GT: 95   EDU: HS Grad   Overseas: Germany   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR, OSR, PUC-ARMY

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 23 June 2004, the applicant stated in a memorandum to the unit commander and the first sergeant that prior to submitting this statement, she had complied with the Army  homosexual  "Don’t Ask, Don't Tell" policy.  However, the applicant felt that she could no longer hide her sexuality and was informing them she was a lesbian.  She further stated being tempted to engage in homosexual acts but never acted upon them because of military policy.  On 31 August 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 15, AR 635-200, by reason of homosexual conduct for admitting she was a homosexual, with an honorable discharge.  She was advised of her rights. On 1 September 2004, the applicant consulted with legal counsel, voluntarily waived consideration of her case by an administrative separation board, contingent upon her receiving a characterization of service of no less favorable than honorable.  The applicant  did not submit a statement in her own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander (1LT) reviewed the proposed discharge action and recommended approval of the separation action with an honorable  discharge.  On 14 September 2004, 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 homosexual conduct, which is incorrect. The applicant admitted in a statement that she was a lesbian, which constitutes admission and the DD Form 214 item 28, narrative for separation reflects "homosexual admission." 
      
      
      
      
      
      
      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 issues she submitted, the analyst determined that the applicant's characterization of service is improper.  The evidence of record shows that the applicant consulted with legal counsel and waived her right to an administrative separation board contingent upon receiving an honorable discharge.  The analyst noted that the applicant was entitled to have her case reviewed by an administrative separation board and that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board based on the conditional waiver she submitted nor an honorable characterization of service.  Furthermore, denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the characterization of service is improper.  In view of the foregoing, the analyst recommends to the Board that relief be granted in the form of an upgrade of the characterization of service to fully honorable. However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.
      
      
      
      
      
      
      
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 15 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: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change 5    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 characterization of service is improper.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable.  However, the Board determined that the reason for discharge was both proper and equitable and voted not 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: 

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

Official: 


CHRISTINE U. MARTINSON			DATE: 18 August 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070012014
______________________________________________________________________

Page 1 of 6 pages