IN THE CASE OF:  	Mr. 

      BOARD DATE:  	6 November 2013

      CASE NUMBER:  	AR20130010329
___________________________________________________________________________

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.  The evidence of record shows the applicant while in entry level status, was discharged for admitting to being homosexual without any aggravating factors as defined in AR 635-200 in effect at the time.  

2.  Accordingly, 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 “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 discharge from uncharacterized to honorable, a change to the reentry eligibility (RE) code and to the narrative reason for the discharge.

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.  He contends the statement he made of the time of discharge is no longer a valid reason for discharge.  Therefore, it is necessary for his RE code to be changed to a 1 and that his characterization of service to honorable.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		31 May 2013
b. Discharge received:			Uncharacterized 
c. Date of Discharge:			12 April 2005
d. Reason/Authority/SPD/RE:		Homosexual Admission , AR 635-200, Chapter 15-3b 						JRB, RE-4
e. Unit of assignment:			A Co, 2nd Bn, 19th IN, Fort Benning, GA
f. Current Enlistment Date/Term:  	3 January 2005, 5 years
g. Current Enlistment Service:  	0 years, 3 months, 10 days
h. Total Service:			0 years, 3 months, 10 days
i. Time lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	None 
m. GT Score:				110
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 Regular Army on 3 January 2005, for a period of 5 years.  He was 20 years old at the time and a high school graduate.  He was serving at Fort Benning, GA when his discharge was initiated.  His record documents no acts of valor or significant achievements.  






SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record indicates that on 17 February 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.  The applicant admitted to his company commander that he was a homosexual and had engaged or had the propensity to engage in homosexual/bisexual acts and refusing to conform to military standards.  

2.  The unit commander recommended the applicant’s discharge with service uncharacterized and advised the applicant of his rights.  

3.  The applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, 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 with an uncharacterized discharge.  

4.  On 13 March 2005, the separation authority approved the separation action and directed the applicant’s discharge with service uncharacterized. 

5.  The applicant was discharged from the Army on 12 April 2005, with a characterization of service of uncharacterized under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, for homosexual admission, with a Separation Program Designator code (SPD) 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.  The applicant's sworn statement admitting that he was a homosexual and he was uncomfortable in close-quarters with other men who would make innocent jokes of a sexual nature.  

2.  The applicant's record contains no actions under the Uniform Code of Military Justice.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application.

POST-SERVICE ACTIVITY: 

None 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 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 and a change to the narrative reason for the discharge was carefully considered.  However, after examining the applicant’s service record, the documents 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 is 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 and separation authority 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: 6 November 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:		1
Grade Restoration to:		NA
Other:					Separation Designator Program (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)		AR20130010329



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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