Applicant Name: ?????
Application Receipt Date: 080710 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See attached DD Form 293 and supporting 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: Date: 031217
Discharge Received: Date: 040206 Chapter: 15-3b AR: 635-200
Reason: Homosexual Admission RE: SPD: JRB Unit/Location: HHC, 173rd ABN Bde (Rear) (Prov), 22nd Area Spt Gp, Vicenza, Italy
Time Lost: None
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 18
Current ENL Date: 030313 Current ENL Term: 03 Years ?????
Current ENL Service: 00 Yrs, 10 Mos, 24 Days ?????
Total Service: 00 Yrs, 10 Mos, 24 Days ?????
Previous Discharges: None
Highest Grade: E2 Performance Ratings Available: Yes No
MOS: 63B Lt WVeh Mech GT: 87 EDU: HS Grad Overseas: Italy Combat: None
Decorations/Awards: NDSM, ASR, PB
V. Post-Discharge Activity
City, State: Biloxi, MS
Post Service Accomplishments: None listed by the Applicant.
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 17 December 2003, the unit commander notified the Applicant of initiation of separation action under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, by reason of homosexual admission with an honorable discharge. The Applicant admitted to his company commander that he had engaged or had the propensity to engage in homosexual/bisexual acts. The Applicant was advised of his rights. On 21 January 2004, the Applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit statement in his own behalf. The unit commander subsequently recommended separation from the service. On 3 February 2004, 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. The 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 soldiers overall record of service.
c. Response to Issues, Recommendation and Rationale:
After a careful review of the Applicants military records and the issue submitted, the analyst found no mitigating factors that would merit a change to the narrative reason for discharge. The evidence of record shows that the Applicant was discharged under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, by reason of homosexual admission. In response to the Applicant's issue, the Applicant was discharged under the provisions of Chapter 5, Paragraph 5-13b, AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Homosexual Conduct (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. In view of the foregoing, the narrative reason for the Applicant's discharge was both proper and equitable. Furthermore, 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.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 1 May 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 Applicants record of service during the period of enlistment under review and considering the analysts 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 NA No change NA
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: No Change
RE Code:
Grade Restoration: No Yes Grade: No Change
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20080011045
______________________________________________________________________________
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