Applicant Name:  ?????

Application Receipt Date: 2008/11/24	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 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: 070517
Discharge Received: 			   Date: 070522   Chapter: 15-3C       AR: 635-200
Reason: Homosexual Conduct (Marriage or Attempted Marriage)	   RE:     SPD: JRC   Unit/Location: Co F, 309th MI BN, Ft Huachuca, AZ 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 070502, commit sodomy with PFC S, disturb the public tranquility by moaning 
and groaning while having initimate physical contact with A PFC after "lights out" after being asked by other Soldiers
 to stop as to allow them to sleep, willfully and wrongfully expose in an indecent matter to public view your 
naked body while having initimate physical contact with a PFC and, wrongfully commit an indecent act with a PFC by 
placing your finger into a PFC's vagina while in the Open Bay barracks area on or about 0703-0704; forfeiture of $300 
pay for two months, extra duty and restriction for 45 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  24
Current ENL Date: 061102    Current ENL Term: 5 Years  ?????
Current ENL Service: 	00 Yrs, 06Mos, 21Days ?????
Total Service:  		00 Yrs, 06Mos, 21Days ?????
Previous Discharges: 	None
Highest Grade: E1		Performance Ratings Available: Yes    No 
MOS: None   GT: 100   EDU: NIF   Overseas: None   Combat: None
Decorations/Awards: None

V.  Post-Discharge Activity
City, State:  Pensacola, FL
Post Service Accomplishments: None submitted by the Applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 15 May 2007, the unit commander notified the applicant of initiation of 
separation action under the provisions of Chapter 15, paragraph 15-2, AR 635-200, for engaging in, attempting to 
engage in, or soliciting another person to engage in a homosexual act or acts and admitting to being a homosexual 
and the desire to commit homosexual acts with a general, under honorable discharge.  She was advised of her rights.  
On 16 May 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 
waived her right to an administrative separation board, and did not submit a statement in her own behalf.  The unit 
commander subsequently recommended separation from the service.  The intermediate commander reviewed the proposed 
discharge action and recommended approval of the separation action with an honorable discharge.  On 16 May 2007, the 
separation authority waived further rehabilitative efforts and directed that the applicant be discharged with an 
general, under 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 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, 
the issue,  and documents submitted with the application, the analyst found no mitigating factors that would merit an 
upgrade of the applicant's discharge.  However, the analyst noted that the separation action under the provisions of 
Chapter 15, paragraph 15-2, AR 635-200 is the discharge policy, therefore the separation authority should read 
paragraph 15-3a, and the narrative reason specified by Army Regulations for a discharge under this paragraph is 
"Homosexual Conduct (Acts)” with the separation code as "JRA."  
       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.  The analyst determined that no such unusual circumstances were present in the 
applicant’s record and the former Soldier’s service did not warrant an honorable discharge.  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.  The analyst noted the applicant's 
issues 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.  Furthermore, the analyst noted that even though a single incident, the discrediting entry 
constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army 
regulation states that there are circumstances in which the conduct or performance of duty reflected by a single 
incident provides the basis for a characterization.  The analyst having examined all the circumstances determined 
that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought 
discredit on the Army, and was prejudicial to good order and discipline.  This single incident of misconduct clearly 
diminished the quality of the applicant's service below that meriting a fully honorable discharge.   The method in 
which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that 
each case must be decided on an individual basis considering the unique facts and circumstances of that particular 
case. 
       Therefore, the analyst recommends to the board the following administrative changes be made to the DD Form 214:
block 25, separation authority changed to read, AR 635-200, para 15-3a, and the narrative reason in block 
28 to "Homosexual Conduct (Acts)” with the separation code in block 26, "JRA".  The analyst determined the 
characterization of service was both proper and equitable and recommends to the Board to deny relief.       
       
VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 3 September 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.   In its review, the Board noted administrative errors on the DD Form 214
and directed an administrative correction be made to block 25,  to read AR 635-200, paragraph 15-3a; 
block 28 to read “Homosexual Conduct, Acts” and block 26, to read “JRA”..
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
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: Homosexual Conduct (Acts)
Other: SPD Code to "JRA"										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080019151
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