Applicant Name:  ?????

Application Receipt Date: 2009/04/13	Prior Review:     Prior Review Date: NA 

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "There for no attempt for a gay marriage. I admit to homosexual acts while being enlisted and active at Ft Huachuca in AZ company F309, but that is not who or what I am. I am and have always been in long relationships with men. I did not and never plan to marry in the same sex".

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: 070522
Discharge Received: 			   Date: 070601   Chapter: 15-3c      AR: 635-200
Reason: Homosexual Conduct (Marriage or Attempted Marriage)	   RE:     SPD: JRC   Unit/Location:     F Co, 309th MI BN, Ft Huachuca, AZ 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 070503, with the intent to deceive, make a false official statement (070330), commit sodomy with a female soldier, disturb the public tranquility, willfully schedule soldiers in timeframes on the duty roster for the purpose of engaging in sexual activity while as the Bay Boss, willfully and wrongfully expose in an indecent manner her private parts and wrongfully commit an indecent act with a female soldier (0703-0704); reduction to E2, forfeiture of $400 pay per month for two months, restriction and extra duty for 45 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 060913    Current ENL Term: 4 Years  ?????
Current ENL Service: 	00 Yrs, 08Mos, 20Days ?????
Total Service:  		00 Yrs, 08Mos, 20Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 97E10 Humint Collector   GT: 105   EDU: BS Degree   Overseas: None   Combat: None
Decorations/Awards: NDSM

V.  Post-Discharge Activity
City, State:  Greenwood Lake, NY
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 22 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, by reason of homosexual admission  and the desire to commit homosexual acts, with an honorable discharge.  The applicant admitted to an investigating officer during the course of the investigation that she was homosexual and had engaged or had the propensity to engage in homosexual/bisexual acts.  She was advised of her rights.  On 23 May 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action 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.  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 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 and documents submitted with the application, the analyst found no mitigating factors that would merit a change to the narrative reason for discharge on the applicant's DD Form 214. 
       However the analyst noted that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, paragraph 15-3c, block 26 as separation code “JRC,"  and block 28, narrative reason for separation as “Homosexual Conduct (Marriage or Attempted Marriage).” 
       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 analyst recommends to the Board that an administrative change be made to block 25, to read "15-3b", block 26, separation code to read "JRB" and block 28, reason for separation to read “Homosexual Conduct (Admission)” which was approved by the separation authority.
       Notwithstanding the propriety of the applicant's discharge, the analyst determined that the narrative reason for discharge 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: 22 January 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA





VIII.  Board Discussion, Determination, and Recommendation
Notwithstanding the propriety of the applicant's discharge, the Board found that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority to read "15-3b", block 26, separation code to read "JRB", and block 28, reason for separation to read “Homosexual Conduct (Admission)” as approved by the separation authority.  Except for the foregoing modification to the applicant's reason for separation, the Board determined that the reason for separation was both proper and equitable and voted not to change it.
        
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 (Admission)
Other: SPD Code to JRB and separation authority to 15-3b										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090006649
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