IN THE CASE OF:  	

      BOARD DATE:  	22 May 2013

      CASE NUMBER:  	AR20130006362
___________________________________________________________________________

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.  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 “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 honorable, a change to the narrative reason for separation and to the reentry code.

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.  It has been 9 years and he has been denied employment and subjected to scrutiny because of his military records.  He is currently a State Trooper and is looking to advance in his career as a law enforcement officer.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		29 March 2013
b. Discharge received:			Uncharacterized 
c. Date of Discharge:			23 November 2004
d. Reason/Authority/SPD/RE:		Homosexual Admission, AR 635-200, Chapter 15-3b 						JRB, RE-4
e. Unit of assignment:			Co C, 1st Bn, 19th IN Regiment, Fort Benning, GA
f. Current Enlistment Date/Term:  	9 August 2004, 3 years and 17 weeks
g. Current Enlistment Service:  	3 months, 15 days
h. Total Service:			3 months, 15 days
i. Time lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	None
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
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 US Army on 9 August 2004, for a period of 3 years and 17 weeks.  He was 18 years old at the time and was a high school graduate.  The applicant’s record does not contain any significant awards.  When his discharge proceedings were initiated he was attending training at Fort Benning, GA.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The service record indicates that on 21 October 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.  The applicant admitted to his company commander that he was homosexual and had engaged or had the propensity to engage in homosexual/bisexual acts.  

2.  The unit commander recommended an entry-level status discharge with service uncharacterized and advised the applicant of his rights.  

3.  On 21 October 2004, 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 either honorable or uncharacterized 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 of the separation with an uncharacterized discharge.  

4.  On 21 October 2004, the separation authority approved the separation action and directed the applicant’s discharge with service uncharacterized. 

5.  On 1 November 2004, the applicant was placed on excess leave status for a period of 23 days.

6.  On 23 November 2004, the applicant was separated from the Army with an uncharacterized discharge, under the authority 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.  

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

Six counseling statements dated between 20 August 2004 and 31 August 2004 for sleeping on guard duty, disrespectful to an NCO, lack of motivation, failure to follow instructions, security of weapons, and separation action.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 214 with his application.

POST-SERVICE ACTIVITY: 

The applicant states he is a State Trooper.

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.  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 service and a change to the narrative reason for the discharge and the reentry code was carefully considered.  However, after examining the applicant’s service record, the document and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  However, the narrative reason for the applicant’s discharge and reentry code are now inequitable based on the current standard.

2.  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.  

3.  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.  

4.  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.  

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

6.  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.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review   	Date:   22 May 2013          	Location: Washington, DC

Did the Applicant Testify?  No 

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 Reason to:	  		Secretarial Authority with corresponding SPD Code of JFF
Change RE Code to: 		1	
Grade Restoration to: 		NA	
Change Authority for Separation:  AR 635-200, paragraph 5-3.	














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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20130006362		

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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