IN THE CASE OF:  	Mr. 

      BOARD DATE:  	29 May 2013

      CASE NUMBER:  	AR20130001383
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the applicant’s characterization of service was proper and equitable and voted not to change it.  However, the Board found the narrative reason for the applicant’s discharge is now inequitable based on the current standard.  

2.  The record indicates the applicant was separated from the Army for homosexual admission, with an uncharacterized discharge.  The record does not contain any aggravating factors as defined in AR 635-200.  

3.  The record confirms 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 with a probationary period.  Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.  

4.  Furthermore, for Soldiers in entry-level status, an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  No such unusual circumstances were present in the applicant’s record and his service did not warrant an honorable characterization.  

5.  Accordingly, the Board voted to grant partial relief in the form of a change to the narrative reason of the applicant’s discharge to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 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.

THE APPLICANT’S REQUEST AND STATEMENT:

1. The applicant requests an upgrade of his uncharacterized discharge to general, under honorable conditions or honorable.

2.  The applicant states, in effect, that he was unaware that he could apply for relief until now. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 January 2013
b. Discharge received:			Uncharacterized 
c. Date of Discharge:			28 June 2007
d. Reason/Authority/SPD/RE:		Homosexual Conduct (Admission), AR 635-200, 						Chapter 15-3b, JRB, RE-4
e. Unit of assignment:			Co F, 120th AG Battalion (RCP) Fort Jackson, SC
f. Current Enlistment Date/Term:  	IADT, 21 February 2007, NIF
g. Current Enlistment Service:  	4 months, 12 days
h. Total Service:			5 months, 9 days
i. Time lost:				None
j. Previous Discharges:		USAR-(070124-070220)/NA									     (Concurrent Service)
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	None
m. GT Score:				NIF
n. Education:				GED Certificate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		No
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the US Army Reserve on 24 January 2007 for a period of 8 years.  He was 18 years old and had a high school equivalency (GED).  On 21 February 2007, he was ordered to active duty for training (IADT) to complete basic and MOS training.  When his discharge proceeding were initiated he was attending basic combat training at Fort Jackson, SC.  







SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record does not contain the discharge packet that normally provides the facts and circumstances related to the discharge.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, for homosexual conduct (admission), with an uncharacterized separation of service.  The DD Form 214 shows a Separation Program Designator (SPD) of JRB and a reentry (RE) code of 4.  

3.  The service record does not contain any evidence of unauthorized absences or time lost.  

4.  On 27 June 2007, DA, HQS U.S. Army Training Center and Fort Jackson, Fort Jackson, SC, Orders Number 178-1303, discharged the applicant from the U. S. Army Reserve effective 28 June 2007.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no counseling statements or UCMJ actions in the record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149; Letter, Richland County Veterans Service Commission; a DD Form 214; and Discharge Orders 178-1303. 

POST-SERVICE ACTIVITY: 

The applicant did not provide any with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 15 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.  

2.  The 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.  

3.  In all other cases where no aggravating factors were present, the type of discharge would reflect the character of the Soldier’s overall record of service. 

4.  AR 635-200, paragraph 3-9 also provides that a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s available record of service, his military records, the issue and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.  

3.  The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, by reason of homosexual conduct (admission), with a characterization of service of uncharacterized 

4.  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 Soldier’s service will be uncharacterized when his separation is initiated while the Soldier is in entry level status.  
      
5.  A general, under honorable conditions discharge is not authorized under ELS conditions and an 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 applicant’s record and the former Soldier’s service did not warrant an honorable discharge.  

6.  Furthermore, 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 considers any aggravating factors and in their absence, will change the narrative reason for the discharge to Secretarial Authority.  The applicant’s available record does not indicate the presence of any aggravating factors.  

7.  In view of the foregoing, the narrative reason of the applicant’s discharge and the reentry code being now inequitable, recommend the Board grant partial relief by changing the reason 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.” The characterization of service was found to be proper and equitable, thus recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review	Date:  29 May 2013             Location: Washington, DC

Did the Applicant Testify:  NA

Counsel:  NA

Witnesses/Observers:  NA

Board Vote:
Character Change:  NA	No Change:  NA
Reason Change:	5	No Change:  0
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	NA
Change Reason to:			Secretarial Authority
Change Authority for Separation:	AR 635-200, Ch 5, Para 5-3
Change RE Code to:		JFF
Grade Restoration to:		NA
Other:					Reentry Eligibility (RE) code to .1












Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130001383



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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