Applicant Name:  ?????

Application Receipt Date: 070828	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: "The applicant in fact states because he wasn't aware of what was going on, a Soldier took a phone conversation with a family member out of proportion, and reported me to the chain of command. I was never Bi sexual, Gay, or anything of that nature. I have a family member who is but that does not mean that I am also. The whole ordeal was taken out of line, and I was told if I got discharged I would be allowed to come back after 2 years of my discharge to Active Duty Army. Which at that time it was a embarrassment on my behalf after everything was out in the open even though it wasnt true at all, and I know that I desrve to have my benefits back as well as my career that worked so hard to get into."

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 010623
Discharge Received: 			   Date: 010628   Chapter: 15      AR: 635-200
Reason: Homosexual Admission	   RE:     SPD: JRB   Unit/Location: HHB, 1-7 FA, APO AE 09033 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 000630    Current ENL Term: 3 Years  ?????
Current ENL Service: 	00 Yrs, 11Mos, 29 Days ?????
Total Service:  		00 Yrs, 11Mos, 29Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 13F10 Fire Support Spec   GT: 97   EDU: HS Grad   Overseas: Germany   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  Houston, TX
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 28 March 2001, the applicant admitted by his own accord in a memorandum to his unit commander that he was bisexual, and did not desire to present any evidence to rebut the presumption that he engaged or had the propensity to engage in homosexual acts.  On 3 June 2001, 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 because he had created a rebuttable presumption which indicated he engaged in, attempted to engage in, or had a propensity to engage in, or intended to engage in homosexual acts, 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 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 15 June 2001, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with an honorable discharge.

       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 28 March 2001, in a written statement that he was 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, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Finally, 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: 10 September 2008         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA



VIII.  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 deny relief.  
        
IX.  Board Decision						XI.  Certification Signature
Board Vote:  							Approval Authority:	
Character - Change 0    No change 0
Reason -     Change 0    No change 5
(Board member names available upon request)
								EDGAR J. YANGER			 
Issue a new DD Form 214  					Colonel, U.S. Army
Change Characterization to: 			President, Army Discharge Review Board	  
Change Reason to:  
Other: NA										
RE Code: 									 
Grade Restoration:   No   Yes   Grade: None


 
       	
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070012079
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