IN THE CASE OF:  	Ms.

      BOARD DATE:  	4 September 2013

      CASE NUMBER:  	AR20130004722
___________________________________________________________________________

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 characterization of discharge was both proper and equitable and voted to deny relief.  

2.  However, based on current standards, the Board voted to grant 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 Separation Program Designator (SPD) Code of “JFF,” and a reentry code (RE) of “3.”





      
      
      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 her general, under honorable conditions discharge to honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, that she left the military due to her sexual orientation at the time.  Now that homosexuality is allowed in the military, she would like her characterization of service and the narrative reason changed so she can receive VA benefits.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 March 2013			
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			25 March 2002	
d. Reason/Authority/SPD/RE Code:	Homosexual Admission, AR 635-200, Chapter 15-3b, 							JRB, RE-4	
e. Unit of assignment:			Headquarters and Headquarters Company, 5th 						Battalion, 159th Aviation Brigade, 101st Airborne 						Division (Air Assault), Fort Campbell, KY			
f. Current Enlistment Date/Term:	30 June 2000, 3 years
g. Current Enlistment Service:	1 year, 8 months, 26 days
h. Total Service:			1 year, 8 months, 26 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	77F10, H7 Petroleum Supply Specialist
m. GT Score:				88
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 30 June 2000, for a period of 3 years.  She was      17 years old at the time of entry, a high school graduate, and completed 1 year, 8 months, and    26 days of active duty service.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record indicates that on 6 February 2002, the unit commander notified the applicant of initiation of discharge proceedings under the provisions of Chapter 15, AR 635-200, by reason of homosexual admission.  The applicant admitted to her company commander in a sworn statement that she 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 honorable and advised the applicant of her rights.  

3.  On 26 February 2002, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived her right to an administrative separation board, and did not submit a statement on her behalf.  The unit commander subsequently recommended separation from the Army.  

4.  On 1 March 2002, the intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 

5.  On 8 March 2002, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, waived her right to an administrative separation board contingent on receiving a characterization of service no less favorable than honorable, and submitted a statement on her behalf.  The unit commander subsequently recommended separation from the Army.  

6.  On 18 March 2002, the applicant withdrew the contingent waiver and did not submit statements on her behalf.
 
6.  On 5 March 2002, the separation authority directed the applicant’s discharge with a general under honorable conditions characterization of service.  

5.  The applicant was separated from the Army with a general, under honorable conditions on 25 March 2002, under Army Regulation 635-200, Chapter 15, paragraph 15-3b for homosexual admission, with an SPD Code of JRB and an RE code of 4.  

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost annotated on her DD Form 214 or on a charge sheet.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A memorandum for record dated, 15 March 2002 that shows the subject general discharge recommendation. 

2.  Seventeen negative counseling statements dated between 29 October 2001 and                  26 February 2002, for initial counseling, disobeying a lawful order (multiple), monthly counseling (multiple), failing to come to formation, failure to report, bad checks, bar to reenlistment, failure to follow instructions/directions (multiple), safety violation of cold gas operations, failure to report to duty on time (multiple), driving while license suspended/revoked.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided an on-line application, and a DD Form 214.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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. 

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her service and a change to the narrative reason for the discharge was carefully considered.  However, after examining the applicant’s record of service, her military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The evidence of record shows the applicant was separated under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, by reason of homosexual admission, with a general under honorable conditions discharge.  

3.  Army Regulation 635-200, in effect at the time, stipulated that an honorable discharge was a separation with honor and was appropriate when the quality of the Soldier’s service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would be clearly inappropriate.  In cases where no aggravating factors were present, the characterization of the discharge would reflect the character of the Soldier’s overall record of service.  

4.  The applicant’s record of service contains seventeen negative counseling statements for repeated incidents of misconduct, which gave the battalion commander the basis to recommend a general, under honorable conditions discharge.  By the misconduct, the applicant diminished the quality of her service below that meriting an honorable discharge.  

5.  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 or poor duty performance.  

6.  However, 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 record does not indicate the presence of any aggravating factors as defined in AR 635-200.

7.  The applicant contends that an upgrade of her discharge would allow educational benefits through the use of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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

9.  Therefore, the characterization of service being both proper and equitable, recommend the Board deny relief.  However, in view of the current standard, it is recommended that the applicant's narrative reason for discharge be changed to Secretarial Authority, under the provisions of Chapter 5, paragraph 5-3a, AR 635-200, with a corresponding SPD Code of JFF, and a reentry code (RE) of 3. 









SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review       Date:  4 September 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers: 	NA 

Board Vote:
Character Change:  1	No Change:  4
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:	No change	
Change Reason to:			Secretarial Authority, with corresponding SPD code of JFF
Change Authority for Separation:	AR 635-200, Chapter 5, paragraph 5-3a
Change RE Code to:		3
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)		AR20130004722



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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