IN THE CASE OF:  	Ms. 

      BOARD DATE:  	20 November 2013

      CASE NUMBER:  	AR20130008200
___________________________________________________________________________

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 a general discharge under honorable conditions.  

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, Paragraph 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 her characterization of service from general, under honorable conditions to honorable, and a change of the narrative reason for separation.

2.  The applicant states, in effect, that her request is based on the repeal of the Don’t Ask Don’t Tell (DADT) policy that was not in effect at the time of her discharge. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 May 2013
b. Discharge received:			General, Under Honorable Conditions 
c. Date of Discharge:			15 October 2008
d. Reason/Authority/SPD/RE:		Homosexual Admission , AR 635-200, Chapter 15-3b 						JRB, RE-4
e. Unit of assignment:			D Troop, 4th U.S. Cav, 541st CSSB, Ft. Riley, KS
f. Current Enlistment Date/Term:  	25 January 2007/ 4 years 
g. Current Enlistment Service:  	1 year, 08 months, 21 days
h. Total Service:			7 years, 02 months, 22 days
i. Time lost:				None
j. Previous Discharges:		USAR/000309-010530/UNC
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	68W10, Health Care Specialist 
m. GT Score:				122
n. Education:				HS Graduate 
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		ARCOM, AAM-2, AGCM-2, NDSM, WTSM,NCOPDR,						ASR  
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 24 July 2001, for a period of 4 years.  She was 18 years old at the time and had a high school diploma.  She reenlisted for 4 years on 25 January 2007.  Her record reflects that she was awarded an ARCOM, AAM-2, AGCM, NDSM, and a GWOTSM.  She was serving at Fort Riley, KS when her discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record indicates that on 7 October 2008, 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 conduct.  Specifically, for voluntarily making a statement that she was a homosexual.  The applicant also received a FG Article 15 for wrongfully having an inappropriate relationship with a lower enlisted Soldier.  The commander determined that the applicant’s continued presence in the Army was not consistent with the interest of the Army in maintaining proper discipline, good order, and morale; and she had the propensity or intent to continue to engage in homosexual acts.

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

3.  On 7 October 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived her right to an administrative separation board, and did not submit a statement on her own 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.  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 15 October 2008, under Army Regulation 635-200, Chapter 15, paragraph 15-3b for homosexual conduct (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.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 3 September 2008, wrongfully having an inappropriate relationship with PFC W (080516-080801).  The punishment consisted of a reduction to E-4; forfeiture of $1067.00; extra duty for 45 days (suspended until 081002); and an oral reprimand.

2.  DA Form 2823 (Sworn Statement), dated 29 July 2008, reflecting the applicant’s admission of being a homosexual, and her inappropriate relationship with PFC W since May 2008.

3.  A developmental counseling statement dated 3 October 2008, discussing the applicant being discharged under the provision of AR 635-200, Chapter 15. 

4.  An NCOER with the ending period 31 August 2008, reflecting a substandard performance during the rating period with a recommendation of “do not promote.” 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a online application, dated 20 May 2013, and a copy of her DD Form 214.  

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 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 conduct, 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 record of service shows that on 3 September 2008, the applicant received an Article 15 for wrongfully having an inappropriate relationship with an enlisted female Soldier, had a negative counseling statement, and received a negative NCOER, 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 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.  

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

8.  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, 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:  20 November 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
Change Reason to:			Secretarial Authority
Change Authority for Separation:	AR 635-200, Chapter 5-3
Change RE Code to:		1
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)		AR20130008200



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1