IN THE CASE OF:  	Ms. 
      
      BOARD DATE:  	31 May 2013

      CASE NUMBER:  	AR20130006556
___________________________________________________________________________

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 that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, notwithstanding the propriety of the applicant's discharge, the Board, on the basis of equity and the current standard, voted to change the applicant’s reason for discharge, authority, separation code, and reentry code and directed that a new DD Form 214 be issued reflecting the following changes:

      a. block 25, separation authority changed to AR 635-200, Chapter 5, paragraph 5-3
      b. block 26, separation code changed to JFF
      c. block 28, narrative reason for separation changed to Secretarial Authority   

3.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable.





      
      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 characterization of service from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that on 20 September 2012, congress repealed the Don’t Ask Don’t Tell policy.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		1 April 2013
b. Discharge received:			General, Under Honorable Conditions 
c. Date of Discharge:			18 March 2003
d. Reason/Authority/SPD/RE:		Homosexual Act, AR 635-200, Chapter 15-3a, 							JRA, RE-3
e. Unit of assignment:			11th Quartermaster Company, Hunter AAF, GA
f. Current Enlistment Date/Term:  	26 February 2002, 3 years
g. Current Enlistment Service:  	1 year, 3 days
h. Total Service:			7 years, 3 months, 20 days
i. Time lost:				20 days
j. Previous Discharges:		RA (960227-990226), HD										ARNG (990227-000401), GD
k. Highest Grade Achieved:		E-4 
l. Military Occupational Specialty:	77F10, Petroleum Supply Specialist
m. GT Score:				99
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant served in the US Army for 3 years before joining the Army National Guard on 27 February 1999.  On 26 February 2002, the applicant rejoined the Regular Army for a period of 3 years.  She was 26 years old at the time and a high school graduate.  When her discharge proceedings were initiated she was serving at Hunter Army Air Field, GA.  Her service record does not show any meritorious achievements or acts of valor.


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 15-3a, AR 635-200, for homosexuality (act), with a general, under honorable conditions characterization of service.  The DD Form 214 shows a Separation Program Designator (SPD) of JRA and a reentry (RE) code of 3.  Army Regulation 635-5-1 indicates the RE code should have been a 4.

3.  On 10 March 2003, HQDA USA Fort Stewart and Hunter Army Air Field, GA, Orders Number 69-52, discharged the applicant from the Army effective 18 March 2003.

4.  The applicant was discharged under Army Regulation 635-200, Chapter 15, for a homosexual act, after serving 1 year and 3 months of a 3-year enlistment.  The applicant served a total of 7 years, 3 months and 20 days of active and inactive service.

5.  The available record indicates a period of 20 days of time lost under USC 972 (021016-021104). The specific facts about this time lost are not in the record.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

There are no counseling statements or UCMJ actions in the record.  However, the applicant returned to the Army as an E-3 and was discharged as an E-2.  The action that reduced her in rank is not contained in the available record.

EVIDENCE SUBMITTED BY THE APPLICANT 

None were provided with the application.

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 her discharge was carefully considered.  However, after examining the applicant’s record of service, her military records, and the issue 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 her discharge from the Army.  However, the applicant’s record does contain 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.  

3.  Further, the DD Form 214 indicates the applicant was discharged under the provisions of Chapter 15, AR 635-200, paragraph 15-3a, by reason of a homosexual act, with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  If the applicant desires a personal appearance hearing, it will be her responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

5.  Moreover, 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.  However, AR 635-200, in effect at the time, stipulates that in situations where no aggravating factors were present, the type of discharge would reflect the character of the Soldier’s overall record of service.  The record indicates the applicant had a period of 20 days of time lost under USC 972 (021016-021104); thus, it appears the characterization of service was appropriate and in accordance with the regulation in effect at the time.

6.  Therefore, based on the available evidence and the government presumption of regularity, it appears the characterization of service was proper and equitable; thus 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 5-3, AR 635-200, with a corresponding SPD Code of “JFF.” 


SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review   	Date:  31 May 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:  	NA
Change Reason to:	 		Secretarial Authority with corresponding SPD Code of JFF
Change RE Code to: 		NA
Grade Restoration to:		NA	
Change Authority for Separation:  AR 635-200, paragraph 5-3.
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)		AR20130006556		

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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