IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 January 2014

      CASE NUMBER:  	AR20130013377
___________________________________________________________________________

Board Determination and Directed Action

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 narrative reason for the applicant’s discharge is now inequitable based on the current standard.   The evidence of record shows the applicant was discharged for admitting to being homosexual with an honorable characterization of service.  Further, the Board determined there were no aggravating factors as defined in AR 635-200 related to the applicant’s discharge.  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 5-3, 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.  On behalf of the applicant, counsel requests a change to the narrative reason and RE code.  

2.  Counsel states, in effect, the applicant’s discharge was based solely on DADT, and there are no aggravating factors in the record; further, he received an honorable discharge.  Therefore, the applicant is requesting to have the reason and RE code changed.  This relief would be in keeping with the facts in his case while at the same time giving the applicant the ability to reapply for enlistment in the military with the appropriate reentry classification. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		17 July 2013
b. Discharge received:			Honorable  
c. Date of Discharge:			26 October 2004
d. Reason/Authority/SPD/RE:		Homosexual Conduct (Admission), AR 635-200 						Chapter 15-3b, JRB, RE-4
e. Unit of assignment:			HHD, 421st Medical Evacuation Battalion, APO AE 						09096
f. Current Enlistment Date/Term:  	10 April 2003, 4 years
g. Current Enlistment Service:  	1 year, 6 months, 17 days
h. Total Service:			1 year, 6 months, 17 days
i. Time lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	None
m. GT Score:				104
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:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant enlisted in Regular Army on 10 April 2003 for a period of 4 years.  He was 27 years old and a high school graduate.  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 in Germany when his discharge was initiated 



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The service record indicates that on 5 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 in a statement to the Legal Assistance Office for his company commander indicating he was homosexual and had the propensity to engage in homosexual acts.  

2.  The unit commander recommended an honorable discharge and advised the applicant of his rights.  

3.  On 5 October 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested an appearance before an administrative separation board contingent upon him receiving an honorable discharge, even though he was not entitled to one, and did not submit a statement on his behalf.  The intermediate commander reviewed the proposed action and recommended approval of the separation with an honorable discharge.  

4.  On 15 October 2004, the separation authority directed the applicant’s discharge with an honorable conditions characterization of service.  

5.  The applicant was separated with an honorable conditions discharge on 26 October 2004, 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 service record does not contain any evidence of time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A counseling statement informing the applicant that he had been flagged and recommended for Chapter 15.

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

EVIDENCE SUBMITTED BY THE APPLICANT:

Counsel provided a statement on behalf of the applicant, DD Form 293, a DD Form 214, AMHRR documents, memoranda pertaining to the Don’t Ask Don’t Tell policy. 

POST-SERVICE ACTIVITY: 

None listed by the applicant.



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 counsel’s request for a change to the narrative reason and RE code was carefully considered.  

2.  After a careful review of all the applicant’s military records, and the issues submitted with the application, the reason for the discharge was found to be inequitable.    

3.  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.  

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

5.  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 full 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 both proper and equitable.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  8 January 2014        Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  Nicole D. Carelli, Esq, DLA Piper LLP, 500 Eight Street NW, Washington, DC 20004

Witnesses/Observers:  NA

Board Vote:
Character Change:  NA	No Change:  NA
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
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)		AR20130013377



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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