IN THE CASE OF:  	

      BOARD DATE:  	12 July 2013

      CASE NUMBER:  	AR20130004262
___________________________________________________________________________

Board Determination and Directed Action

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 characterization of the applicant's service is inequitable and the reason for the separation is now inequitable based on the current standard.  The service record shows the applicant was discharged for admitting to being homosexual with a general, under honorable conditions characterization of service.  The Board determined there were no aggravating factors as defined in AR 635-200 related to the applicant’s discharge.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization to honorable and a change to the narrative reason of the applicant’s 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.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of his characterization of service from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that his request is based on the repeal of the Don’t Ask Don’t Tell policy that was in effect at the time of his discharge.  He contends he was very young and impressionable during his service and regrets his actions during that time. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 February 2013
b. Discharge received:			General, Under Honorable Conditions 
c. Date of Discharge:			17 October 2006
d. Reason/Authority/SPD/RE:		Homosexual Acts, AR 635-200, Chapter 15-3a 							JRA, RE-4
e. Unit of assignment:			B Co, 2nd Bn, 16th IN Regt, Fort Riley, KS
f. Current Enlistment Date/Term:  	22 September 2005, 4 years and 19 weeks
g. Current Enlistment Service:  	1 year, 26 days
h. Total Service:			1 year, 26 days
i. Time lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				98
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 22 September 2005, for a period of 4 years and 19 weeks.  He was 19 years old at the time and was a high school graduate.  His record documents no acts of valor or significant achievements.  He was serving at Fort Riley, KS when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record indicates that on 2 October 2006, the unit commander notified the applicant of initiation of discharge proceedings under the provisions of Chapter 15, paragraph 15-3, AR 635-200, by reason of homosexual acts (appeared in a video performing oral sodomy).  The applicant admitted to his company commander in a sworn statement that he was homosexual and had engaged or had the propensity to engage in homosexual or bisexual acts.  

2.  The unit commander recommended a characterization of service of general, under honorable conditions and advised the applicant of his rights.  

3.  On 2 October 2006, 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 receiving a characterization of service no less favorable than general, under honorable conditions, and did not submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 10 October 2006, the separation authority directed the applicant’s discharge with a general, under honorable conditions characterization of service.  

5.  The applicant was separated with a GD on 17 October 2006, under Army Regulation 635-200, Chapter 15, paragraph 15-3a for homosexual acts, with an SPD Code of JRA and an RE code of 4.  

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Unit Commander's sworn statement, dated 8 September 2006, which indicates the applicant admitted to smoking marijuana, explained his reason for going AWOL, and his past drug use and bisexual/homosexual acts.  However, the applicant's record contains no counseling statements or actions under the Uniform Code of Military Justice for smoking marijuana, going AWOL or past drug use.

2.  One counseling statement, dated 2 October 2006, which informed the applicant about being separated under the provisions of chapter 15-3.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 14 February 2013.


POST-SERVICE ACTIVITY: 

None were provided 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 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.  

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.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

5.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of service was carefully considered.

2.  After a careful review of all the applicant’s military records, the issue and documents submitted with the application, the characterization of service was found to be inequitable.    

3.  The record confirms the applicant was discharged under the provisions of Chapter 15, paragraph 15-3a, AR 635-200, in effect at the time, by reason of homosexual acts.  Army Regulation (AR) 635-200, in effect at the time, stipulated that an honorable discharge is a separation with honor and the honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

4.  The service record indicates that the unit commander in his sworn statement; stated that the applicant admitted to him that he had smoked marijuana, used drugs in the past, explained his reason for going AWOL, and that he was bisexual/homosexual.  Having been informed of the prior incidents of misconduct, the record shows separation action was initiated against the applicant only for his homosexual acts after he admitted to being bisexual/homosexual.  

5.  It appears the command did not find the other incidents of misconduct serious enough to include them in the notification memorandum; which might have warranted the applicant receiving a general, under honorable conditions characterization of service.  The applicant completed 1 year and 26 days of a 4 year and 19 week enlistment, attained the grade of E-2, and had no other derogatory information in the service record except for the incidents mentioned in the unit commander's statement and no aggravating factors.  There is no documented bad time to support the purported AWOL, nor is there an Article 15 or a reprimand.  The admission of drug use may have been protected by the limited use policy.

6.  Further, current law and regulations 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 record does not indicate the presence of any aggravating factors.  

7.  The records show the proper discharge and separation procedures were followed in this case.  

8.  Therefore the characterization and reason for discharge being inequitable, recommend the Board grant full relief by upgrading the characterization to honorable and the narrative reason for 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.


SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	        Date: 12 July 2013           Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None



Board Vote:
Character Change:  4	No Change:  1
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:		Honorable
Change Reason to:				Secretarial Authority
Change Authority for Separation:	AR 635-200, Chapter 5-3, with corresponding separation code of JFF
Change RE Code to:			RE-Code 1
Grade Restoration to:			NA
Other:						NA





























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)		AR20130004262



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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