IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 September 2013

      CASE NUMBER:  	AR20130005893
___________________________________________________________________________

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 both 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 a general, under honorable conditions discharge. 

3.  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 5-3, AR 635-200, with a corresponding 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 his general, under honorable conditions to honorable.

2.  The applicant states, in effect, he desires to receive VA benefits to continue his education and receive any other benefits in the future.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 March 2013
b. Discharge received:			General, Under Honorable Conditions 
c. Date of Discharge:			15 July 2005
d. Reason/Authority/SPD/RE:		Homosexual Conduct (Admission), AR 635-200, 						Chapter 15-3b, JRB, RE-4
e. Unit of assignment:			Finance Management Company, 101st Soldier 							Support Battalion, Fort Campbell, KY
f. Current Enlistment Date/Term:  	9 September 2003, 4 years
g. Current Enlistment Service:  	1 years, 7 months, 22 days
h. Total Service:			1 years, 7 months, 22 days
i. Time lost:				73 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	44C10, Finance Specialist
m. GT Score:				93
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:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant enlisted in Regular Army on 9 September 2003 for a period of 4 years.  He was 21 years old and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 44C10, Finance Specialist.  His record does not contain any evidence of acts of valor or meritorious achievements and he achieved the rank of PFC/E-3.  He was serving at Fort Campbell, KY when his discharge was initiated 






SEPARATION FACTS AND CIRCUMSTANCES:

1.  The service record indicates that on 23 June 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 admission.  On 14 June 2005, the applicant admitted in statement to the Legal Assistance Office for his company commander indicating he was bisexual and had the propensity to engage in homosexual acts.  

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

3.  On 27 June 2005, in a memorandum for record the applicant waived his right to consult with legal counsel.  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.  

4.  On 1 July 2005, the separation authority directed the applicant’s discharge with a general under honorable conditions characterization of service and if the Soldier was entitled to an administrative separation board that right was waived.  

5.  The applicant was separated with a general, under honorable conditions discharge on 15 July 2005, under provisions of 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 record of service indicates 73 days of time lost for being AWOL from          24 March 2005 through 23 May 2005, for 60 days.  Also, he was confined by civil authorities from 24 May 2005 through 7 June 2005 for 13 days, until he was released and returned to the unit on 7 June 2005.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record does not contain any counseling statements or any actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application and a DD Form 214. 

POST-SERVICE ACTIVITY: 

The applicant stated in the application he was enrolled at Colorado Technical University.





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 his service was carefully considered.  However, after examining the applicant’s record of service, his military records, the document and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge

2.  The record of service shows the applicant had 73 days of time lost for being AWOL from          24 March 2005 through 23 May 2005, for 60 days.  Also, he was confined by civil authorities from 24 May 2005 through 7 June 2005 for 13 days, until he was released and returned to the unit on 7 June 2005, which would have given the commander the basis to recommend a general, under honorable conditions discharge.  By the misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  

3.  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.  

4.  The applicant desires to receive VA benefits to continue his education and receive any other benefits in the future.  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.

5.  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.

6.  The records show the proper discharge procedures were followed in this case.  

7.  In view of the foregoing, the narrative reason for the applicant’s discharge and the reentry eligibility (RE) code are 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 “3.” The characterization of service was found to be both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review   Date:  27 September 2013    Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character Change:  0	No Change:  5
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
Change Authority for Separation:	AR 635-200, Chapter 5, Paragraph 5-3
Change RE Code to:		RE-3
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) Code JFF






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)		AR20130005893



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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