Applicant Name:  ?????

Application Receipt Date: 2009/07/06	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 submitted by the applicant. The applicant claims discharge was inequitable because he never received an Article 15 or even a negative counseling statement.

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: 080626
Discharge Received: 			   Date: 080711   Chapter: 15     AR: 635-200
Reason: Homosexual  (Acts)	   RE:     SPD: JRA   Unit/Location: A Co, 14th MI Bn, 470th MI Bde, Ft. Sam Houston, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 070621    Current ENL Term: 3 Years  17 weeks
Current ENL Service: 	01 Yrs, 00Mos, 21Days ?????
Total Service:  		01 Yrs, 00Mos, 21Days ?????
Previous Discharges: 	None
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 92Y10 Unit Supply Spec   GT: 92   EDU: HS Transcript   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  Columbus, OH
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 on 26 June 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 15, paragraph 15-3a, AR 635-200, by reason of homosexual conduct, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 27 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, and did not make a statement in his own behalf.  The unit commander subsequently recommended separation from the Army.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  
       
       On 2 July 2008, the separation authority directed that the applicant be discharged with a characterization of service of general, under honorable conditions.
       
       The record contains an AR 15-6 investigation dated 10 April 2008 which indicates the applicant engaged in homosexual acts with another Soldier on several occasions in the barracks at Fort Sam Houston, Texas..
       

       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, and the issue submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.    
       
       The analyst determined the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct by military personnel.  The applicant’s acts had an adverse impact on the discipline, good order, and/or morale of his unit and diminished the quality of his service below that meriting a fully honorable discharge.  
       
       The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct.  
       
       The applicant contends his discharge is inequitable because he never received any negative counseling statements or an Article 15.  However, AR 635-200, states that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued 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.   The command determined the applicant’s homosexual acts happened in the barracks, a location under military control, and did affect his overall record of service and adversely impacted discipline, good order, and/or morale of the unit and approved a general, under honorable conditions as provided by the regulation.  
       
       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. 
       
       Therefore, the analyst determined the reason for discharge and the characterization of service 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: 28 April 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: None

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 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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA


















Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090012305
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