Applicant Name:  ?????

Application Receipt Date: 2008/04/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached document submitted by the applicant.

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: 	NIF  Date: NIF
Discharge Received: 			   Date: 050402   Chapter: 8-26h    AR: NGR 600-200
Reason: Homosexuality	   RE:     SPD: NA   Unit/Location: HSC, 216th Engr Bn (Rear), Hamilton, OH 

Time Lost: NIF

Article 15s (Charges/Dates/Punishment): NIF, a memorandum dated 20 September 2004 reduced the applicant to E-1 for misconduct.

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 040128    Current ENL Term: 6 Years  with an approved waiver for enlistment (040121)
Current ENL Service: 	01 Yrs, 02Mos, 05Days ?????
Total Service:  		04 Yrs, 02Mos, 03Days Item 10c on the NGB Form 22, prior active Federal Service is incorrect, should read 00 Yrs, 11 Mos, 10 Days. 
Previous Discharges: 	ARNG-990610-990615/NA
                                       IADT-990616-990820/NA
                                       ARNG-990821-000704/NA
                                       ADT-000705-000908/UNC
                                       ARNG-000909-010627/HD
                                       USAF-010628-020128/GD
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 92G10 Food Service Spec   GT: 95   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The specific facts and circumstances pertaining to the applicant’s discharge from the Army National Guard   State of Ohio and as a Reserve of the Army are not contained in the available records.  However, The record does contain a properly constituted NGB Form 22 (Report of Separation and Record of Service), which the applicant was unavailable for signature.  It indicates that the applicant was discharged under the provisions of Paragraph 8-26h, NGR 600-200, by reason of homosexuality, with a characterization of service of honorable, and a reenlistment eligibility (RE) code of "4."  On 4 April 2005, State of Ohio, , The Adjutant General's Department, Columbus, Ohio, Orders 064-D12, discharged the applicant from the Army National Guard and as a Reserve of the Army, effective date:  2 April 2005, with a honorable discharge.  

       b.  Legal Basis for Separation:  
       National Guard Regulation (NGR) 600-200 and Army Regulation 135-178 govern procedures covering enlisted personnel of the Army National Guard.  Chapter 8-26h of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard.  Army Regulation135-178 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 2, 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 available military records during the period of enlistment under review, the issues and document he submitted, the analyst found no mitigating factors that would merit a change to the narrative reason for discharge.  The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army National Guard  State of Ohio and as a Reserve of the Army.  However, the available records does contain a properly constituted NGB Form 22 (Report of Separation and Record of Service), which the applicant was unavailable for signature.  This document identifies the reason and characterization of the discharge and the analyst presumed Government regularity in the discharge process.  The evidence of record shows the applicant was discharged under the provisions of Chapter 8, Paragraph 8-26h, NGR 600-200, by reason of homosexuality with a honorable characterization of service.  Barring evidence to the contrary, 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.  Furthermore, the analyst noted the applicant's issue and 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.  Further, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment.  Finally, the analyst noted the applicant's issue; however, NGR 600-200, paragraph 8-17 (preparation and distribution of NGB Form 22 (Report of Discharge and Record of Service), governs preparation of the NGB Form 22.  The narrative reason specified for a discharge under parahraph 8-26h is "Homosexuality."  NGR 600-200, paragraph 8-17 (preparation and distribution of NGB Form 22) dictates that entry of the narrative reason for separation, entered in block 24 and separation code, entered in block 26 of the form, will be entered exactly as the regulation stipulates and no deviation is authorized.  In view of the foregoing, the analyst determined that the reentry eligibility (RE) code and the narrative reason for discharge were both proper and equitable and recommends to the Board to deny relief.
       
       
       
       
       
       
       
       
       
        

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 11 February 2009         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 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			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080006300
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