Applicant Name:  ?????

Application Receipt Date: 2009/01/21	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The Applicant provided no issues of equity or propriety to be considered by the board. See enclosed DD Form 293 and documents 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: undated
Discharge Received: 			   Date: 080820   Chapter: 15-3B       AR: 635-200
Reason: Homosexual Conduct (Admission)	   RE:     SPD: JRB   Unit/Location: Forward Support Command, 1st Bn, 26th Inf Reg, Ft. Hood, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): No Article 15s are contained in the file; however the company commander’s memorandum to the battalion commander notes reduction to E2  on 28 January 2008. 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 070201    Current ENL Term: 3 Years  20 weeks
Current ENL Service: 	1 Yrs, 6Mos, 20Days ?????
Total Service:  		1 Yrs, 6Mos, 20Days ?????
Previous Discharges: 	None
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 92G10 Food Service   GT: 87   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Murphy, TX
Post Service Accomplishments: Nothing provided by the Applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that 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 conduct with a general under honorable conditions discharge.  The applicant admitted to his company commander during the course of a sworn statement, dated 18 June 2008 that he was homosexual and had engaged or had the propensity to engage in homosexual/bisexual acts.  He was advised of his rights.  On 25 June 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived his right to an administrative separation board, on the condition that he receive an honorable discharge  and did not a statement in his own behalf.  The unit commander subsequently recommended separation from the service.  On 5 August 2008, Department of the Army, Headquarters, III Corps and Fort Hood, discharged the applicant under Orders 218-0109.

       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 the applicant’s military records, the analyst determined that the characterization of service is improper.  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 conduct admission. The evidence of record shows that the applicant consulted with legal counsel and waived his right to an administrative separation board contingent upon receiving an honorable discharge. The analyst noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record is void of any evidence that the applicant had received an administrative separation board, or that the applicant had submitted an unconditional waiver.  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.  The analyst further noted that the applicant had completed over 1 year of active military service, attained the grade of E-3, and had no other derogatory information in the service record. Further, 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.  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 record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition. 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 narrative reason for discharge was both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 091023         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 characterization was and is improper.  The evidence of record shows that the applicant consulted with legal counsel and waived his administrative separation board contingent on receiving an honorable discharge. The Board noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record is void of any evidence that the applicant was granted an administrative separation board or that an unconditional waiver was approved.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable. 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. 
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090003829
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