Applicant Name:  ?????

Application Receipt Date: 2010/05/28	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant, states in effect, that he was discharged for homosexual admission but received a general, under honorable conditions characterization of service.  He did not have any Articles 15, received many awards, including an ARCOM with valor, served in Iraq and is now being treated for PTSD.

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: 050415
Discharge Received: 			   Date: 050504   Chapter: 15-3b    AR: 635-200
Reason: Homosexual Admission	   RE:     SPD: JRB   Unit/Location: Rear Detachment, 3-7 IN Bn, Fort Stewart, GA 

Time Lost: 54 days, AWOL (050125-050320), mode of return is unknown.

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:  21
Current ENL Date: 030812    Current ENL Term: 4 Years  ?????
Current ENL Service: 	01 Yrs, 07Mos, 00Days ?????
Total Service:  		03 Yrs, 03Mos, 27Days ?????
Previous Discharges: 	RA 011113-040421/HD (Immediate Reenlistment)
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 11B10/Infantryman   GT: 121   EDU: GED   Overseas: SWA   Combat: Iraq (021120-030811)
Decorations/Awards: ARCOM-2, AAM, PUC, NDSM, GWOTSM, GWOTEM, CIB, ASR

V.  Post-Discharge Activity
City, State:  Savannah, GA
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 15 April 2005, 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 for engaging in, attempting to engage in, or soliciting another person to engage in homosexual acts, with a general, under honorable conditions discharge.  On 5 April 2005, in a sworn statement, the applicant had admitted to having engaged in homosexual acts and engaged or had the propensity to engage in homosexual/bisexual acts.  He was advised of his rights.  
       
       On 20 April 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an Administrative Separation Board contingent upon him receiving a characterization of service no less favorable than honorable and did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the Army.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  
       
       On 25 April 2005, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service as general under honorable conditions.  

       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 and documents submitted, 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 admission.  The analyst further noted that the applicant had waived an administrative separation board contingent upon him receiving a characterization of service no less favorable than honorable.  The applicant’s request about his contingency waiver was not addressed and this constitutes a violation of the applicant’s rights.  
       
       Further, the analyst noted the applicant’s issue about rejoining the Service.  However, at the time of discharge he was appropriately assigned a reentry eligibility (RE) code of “4.”  At this time, a reentry code of “4” for homosexual admission cannot be waived.  If the applicant wishes to rejoin the Service he should check with a recruiter to determine his eligibility to reenlist.
       
       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: 5 January 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 214, VA medical records (26 pages), NCOER, character reference letters.

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 of service is improper.  The Board noted that the applicant was discharged under the provisions of Chapter 15, paragraph 15-3b, by reason of homosexual admission with a general, under honorable conditions discharge.  The board noted the applicant’s conditional waiver was not addressed as required by AR 635-200.  Accordingly, the Board voted to grant full relief in the form of an upgrade of characterization of service to honorable.   However, the Board determined that the reason for discharge was proper and equitable and voted not to change it.  
        
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














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 AR20100015820
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