IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 June 2014

      CASE NUMBER:  	AR20130016702
___________________________________________________________________________

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 discharge was both proper and equitable and voted to deny relief.




      
      
      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 the narrative reason for his separation and the reentry eligibility (RE) code be changed. 

2.  The applicant states, in effect, he was never given a chance to defend himself against the allegations that were brought against him.  He was told by a JAG officer to accept the honorable discharge and leave with his dignity.  He is trying to get employed with the US Border Patrol and other federal agencies.  He has tried to reenlist under any branch that he could without success.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			9 September 2013
b. Discharge Received:			Honorable
c. Date of Discharge:				14 December 2001
d. Reason/Authority/SPD/RE Code:		Homosexual Act, AR 635-200, Chapter 15-3a,
JRA, RE-4
e. Unit of assignment:				Headquarters & Headquarters Company,
2nd Battalion, 63rd Armor, Germany, APO AE
f. Current Enlistment Date/Term:		17 June 1998, 5 years
g. Current Enlistment Service:		3 years, 5 months, 28 days
h. Total Service:				3 years, 5 months, 28 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		19K10, M1 Abrams Armor Crewmember
m. GT Score:					98
n. Education:					HS Grad
o. Overseas Service:				Germany (990124-011214)
p. Combat Service:				None
q. Decorations/Awards:			ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 17 June 1998, for a period of 5 years.  He was 19 years old at the time of entry and a high school graduate.  He served in Germany and completed 3 years, 5 months, and 28 days of active duty service.  His record documents no acts of valor or significant achievements.  He was stationed in Germany, when his discharge was initiated.  Note: The applicant claims in his self authored statement that he was wounded medically in a training exercise and has orders given to him by the Army and his former commanders stating that he received various awards which are not shown on his DD Form 214.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 16 October 2001, the evidence of record shows the unit commander notified the applicant of initiation of discharge proceedings under the provisions of Chapter 15, paragraph 15-3a, AR 635-200, by reason of homosexual conduct.  Specifically, for statements made by a Specialist x 3, Private First Class x 2, that he wanted to perform sexual acts on them.  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 the applicant had the propensity or intent to continue to engage in homosexual acts.  He was advised of his rights. 

2.  The unit commander recommended a characterization of service of honorable and advised the applicant of his rights.  

3.  On 18 October 2001, the applicant in a memorandum to the separation authority; after consulting with legal counsel and being informed that he was entitled to an administrative separation board because he was being considered for separation with a discharge characterization of under other than honorable conditions, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than honorable.  

4.  The unit commander subsequently recommended separation from the Army.  The intermediate commander reviewed the proposed action and recommended approval with an honorable discharge.  

5.  The separation authority directed the applicant’s discharge with an honorable characterization of service.  

6.  The applicant was separated with an honorable discharge on 14 December 2001, under the provisions of Army Regulation 635-200, Chapter 15-3a, for homosexual acts, with an SPD Code of JRA 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:

1.  Article 15, dated 26 June 2000, for wrongfully using provoking words to wit: “I’m going to say no and tell you niggers to get out of my room” or words to that effect toward Corporal P (000513).  The punishment imposed consisted of reduction to the grade of E-2, forfeiture of $263.00 pay (suspended) to be automatically remitted if not vacated before (001223), 14 days of extra duty and an oral reprimand (CG).

2.  A negative counseling statements dated 17 May 2000, for using a racial slur that was direct toward other Soldiers.
      
3.  Six sworn statements with various dates from several Soldiers who stated they were solicited by the applicant in a sexual nature.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149 dated 3 September 2013, in lieu of a DD Form 293, self authored statement, and a copy of his DD Form 214.  

POST-SERVICE ACTIVITY: 

The applicant did not provide any with his 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 a change to the narrative reason for his separation and the reentry eligibility (RE) code was carefully considered.  However, after examining the applicant’s record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for separation and the reentry eligibility (RE) code.  

2.  The record confirms that the applicant’s narrative reason for separation was appropriate because the applicant’s solicitation of other Soldiers to engage in a sexual act was not consistent with the Army's standards for acceptable personal conduct by military personnel.  The applicant’s admission of engaging in a sexual act and his solicitation of other Soldiers to engage in sexual acts had an adverse impact on the discipline, good order, and morale of his unit.  

3.  The service record indicates the applicant while soliciting a Soldier to engage in a sexual act stated to the Soldier in a sworn statement that he had engaged in a sexual act.  There were other sworn statements from Soldiers attesting to the fact that the applicant solicited them for sexual acts, which were considered by his chain of command as aggravating factors as defined in AR 635-200 in effect at the time of discharge. 

4.  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.  

5.  The applicant contends he was never given a chance to defend himself against the allegations that were brought against him.  He was told by a JAG officer to accept the honorable discharge and leave with his dignity.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  

6.  The applicant contends he is trying to get employed with the US Border Patrol and other federal agencies.  He has tried to reenlist under any branch that he could without success.  The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

7.  The applicant further contends the narrative reason for his discharge should be changed; however, the applicant was discharged under the provisions of Chapter 15, paragraph 15-3a, AR 635-200 in effect at the time, by reason of homosexual acts with an honorable discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Homosexual Acts” and the separation code is "JRA" with a reentry eligibility (RE) code of “4.”  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, separation code, entered in block 26, and the reentry eligibility (RE) code entered in block 27 of the form will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation. 

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

9.  Therefore, the narrative reason for discharge being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  25 June 2014        Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  None

Witnesses/Observers:  No

Board Vote:
Character Change:  NA	No Change:  NA
Reason Change:	2	No Change:  3
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
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)		AR20130016702



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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