Applicant Name: ?????
Application Receipt Date: 2011/10/06 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant states, in effect, that she is requesting a change to the reason for her discharge to convenience of the government, based on the repeal of the Dont Ask dont tell policy on 20 September 2011. She also asks that the reentry code be changed to 1 with a corresponding separation program designator.
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: 040908
Discharge Received: Date: 040922 Chapter: 15-3b AR: 635-200
Reason: Homosexual Admission RE: SPD: JRB Unit/Location: FTC, 120th TC, Fort Jackson, SC
Time Lost: None
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 23
Current ENL Date: 040330 Current ENL Term: 6 Years ?????
Current ENL Service: 00 Yrs, 05 Mos, 23 Days ?????
Total Service: 00 Yrs, 05 Mos, 23 Days ?????
Previous Discharges: None
Highest Grade: E-1 Performance Ratings Available: Yes No
MOS: None GT: 91 EDU: HS Grad Overseas: None Combat: None
Decorations/Awards: None
V. Post-Discharge Activity
City, State: Bath, NY
Post Service Accomplishments: None listed in the application
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 8 September 2004, 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 admission with an uncharacterized discharge. The applicant admitted to her company commander in a sworn statement that she was a homosexual and had engaged or had the propensity to engage in homosexual/bisexual acts. She was advised of her rights.
On 8 September 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and voluntarily waived consideration of her case by an Administrative Separation Board contingent upon receiving a discharge under the provisions of entry level status and did not submit a statement on her behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed action and recommended approval with an uncharacterized discharge.
On 13 September 2004, the separation authority approved the separation action and directed the applicants discharge with service as uncharacterized.
b. Legal Basis for Separation:
Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 15 of that regulation stated that active homosexuality was incompatible with military service and provided, in pertinent part, for the separation of members who actively engaged in homosexual conduct or who, by their statements, demonstrated a tendency to engage in homosexual conduct. The Army regulation stated that when the sole basis for separation was homosexuality, a discharge under other than honorable conditions may be issued only if such characterization was warranted in accordance with Chapter 3, Section III, and if there was 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 where no aggravating factors are present, the type of discharge would reflect the character of the Soldiers overall record of service.
c. Response to Issues, Recommendation and Rationale:
Although the applicant did not properly annotate the DD Form 149 requesting a review of her record for a possible upgrade of her discharge, she was given the benefit of this review as instructed in pertinent part by Department of Defense Instruction 1332.28. This instruction stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.
After a careful review of all the applicants 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 an upgrade of the applicant's discharge. However, the analyst determined that the narrative reason for the applicants separation is now inequitable based on the current standard.
The analyst noted that the applicant was in entry level status (ELS) at the time the unit commander initiated separation action under the provisions of Chapter 15, paragraph 15-3b, AR 635-200 in effect at the time, by reason of homosexual admission. A Soldier is in entry-level status for the first 180 days of continuous active duty. The purpose of the entry-level status is to provide the Soldier a probationary period. Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldiers service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.
Further, for Soldiers in entry-level status, a fully honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The analyst determined that no such unusual circumstances were present in the applicants record and the former Soldiers service did not warrant an honorable discharge.
Current law and regulations now allow Soldiers who are homosexual to serve openly. Former Soldiers that were discharged under the old policy may request a change to the reason for their separation invoking the current standard. The Board will consider any aggravating factors and in their absence, will change the narrative reason for the discharge to Secretarial Authority. The analyst determined that the applicants record does not indicate the presence of any aggravating factors.
In view of the foregoing, the analyst concludes that the applicants characterization of service was proper and equitable. However, the analyst recommends to the Board that the narrative reason of the applicants discharge be changed to Secretarial Authority, under the provisions of Chapter 5, AR 635-200, with a corresponding SPD Code of JFF, and a reentry code (RE) of 1.
VII. Summary of Army Discharge Review Board Hearing
Type of Hearing: Date: 30 March 2012 Location: Washington, DC
Did the Applicant Testify? Yes No
Counsel: None
Witnesses/Observers: NA
Exhibits Submitted: DD Form 149, and an article from the ARBA website.
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicants record of service during the period of enlistment under review and considering the analysts recommendation and rationale, the Board determined that the the applicants characterization of service was proper and equitable and voted not to change it. Moreover, the narrative reason for the applicants discharge is now inequitable based on the current standard. The record shows that the applicant was discharged for admitting to being homosexual with service uncharacterized. The Board determined there were no aggravating factors as defined in AR 635-200 related to the applicants discharge. Accordingly, the Board voted to grant relief in the form of a change to the narrative reason of the applicants discharge to Secretarial Authority, under the provisions of Chapter 5, AR 635-200, with a corresponding SPD Code of JFF, and a reentry code (RE) of 1.
IX. Board Decision
Board Vote:
Character - Change 0 No change 5
Reason - Change 5 No change 0
(Board member names available upon request)
X. Board Action Directed
Issue a new DD Form 214
Change Characterization to:
Change Reason to: Secretarial Authority under Provision of Chapter 5, AR 635-200, with a corresponding SPD Code of JFF.
Other: None
RE Code:
Grade Restoration: No Yes Grade: NA
XI. Certification Signature
Approval Authority:
EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board
BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
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 AR20110020264
______________________________________________________________________________
Page 1 of 3 pages
ARMY | BCMR | CY2011 | AR20110016714
Applicant Name: ????? A Soldier is in entry-level status for the first 180 days of continuous active duty. Army Regulation 635-200, also provides, except in cases of serious misconduct, that a Soldiers service will be uncharacterized when her separation is initiated while the Soldier is in entry level status.
ARMY | DRB | CY2013 | AR20130016363
After carefully examining the applicants record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the applicants characterization of service was both proper and equitable and voted not to change it. The record indicates the applicant was separated from the Army for homosexual admission, with an uncharacterized discharge. The service record indicates that on 16 June 2003, the unit commander...
ARMY | DRB | CY2011 | AR20110017309
Applicant Name: ????? Facts and Circumstances: The evidence of record shows that on 12 January 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 15, paragraph 15-3c, AR 635-200, by reason of homosexual conduct (marriage or attempted marriage) with an honorable discharge. The Board will consider any aggravating factors and in their absence, will change the narrative reason for the discharge to Secretarial Authority.
ARMY | DRB | CY2012 | AR20120000104
Discharge Under Review Unit CDR Recommended Discharge: Date: 070628 Discharge Received: Date: 070906 Chapter: 15-3b AR: 635-200 Reason: Homosexual Conduct (Admission) RE: SPD: JRB Unit/Location: U.S. Army Recruiting Company Redlands, U.S. Army Recruiting Battalion Southern California, Redlands, CA Time Lost: None Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. The Board will consider any aggravating...
ARMY | DRB | CY2011 | AR20110016649
Applicant Name: ????? On 1 September 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived her right to an administrative separation board, contingent upon her receiving a characterization of service no less favorable than an honorable discharge and did not submit a statement in her own behalf. The Board will consider any aggravating factors and in their absence, will change the narrative reason for the discharge to Secretarial Authority.
ARMY | DRB | CY2013 | AR20130011546
After carefully examining the applicants record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the applicants characterization of service was proper and equitable and voted not to change it. The record indicates the applicant was separated from the Army for homosexual admission, with an uncharacterized discharge. AR 635-200, paragraph 3-9 also provides that a separation will be described as...
ARMY | DRB | CY2012 | AR20120009317
Facts and Circumstances: The evidence of record shows that on 2 August 2007, 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 admission with a general, under honorable conditions discharge. On 2 August 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of her case by an administrative...
ARMY | DRB | CY2012 | AR20120009479
Facts and Circumstances: The evidence of record shows that on 17 September 2009, 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 having created a rebuttable presumption that indicated she had the propensity to engage in homosexual or bisexual acts, with an honorable discharge. In view of the foregoing, the analyst recommends that the applicant's characterization...
ARMY | DRB | CY2013 | AR20130004673
Accordingly, the Board voted to grant relief in the form of a change to the narrative reason of the applicants discharge to Secretarial Authority, under the provisions of Chapter 5-3, AR 635-200, with a corresponding SPD Code of JFF, and a reentry code (RE) of 1. Presiding Officer I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case. On 12 March 2004, the separation authority approved the...
ARMY | DRB | CY2011 | AR20110006006
Applicant Name: ????? In the mean time I changed my MOS to avoid being at the same training location as the other soldier and was put in training at Ft. Sam Houston. On 15 April 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of her case by an administrative separation board contingent upon her receiving a characterization of service no less favorable than an honorable discharge and did not submit a...