IN THE CASE OF:  	Ms. 

      BOARD DATE:  	22 January 2014

      CASE NUMBER:  	AR20130019565
___________________________________________________________________________

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 27, reentry eligibility (RE) code to 3
      d. 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 discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that she would like an upgrade of her discharge as a result of congress repealing the Don’t Ask Don’t Tell Policy.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		1 November 2013
b. Discharge received:			General, Under Honorable Conditions 
c. Date of Discharge:			26 August 2004
d. Reason/Authority/SPD/RE:		Homosexual Act, AR 635-200, Chapter 15,							paragraph 15-3a, JRA, RE-4
e. Unit of assignment:			401st MP Co, Fort Hood, TX
f. Current Enlistment Date/Term:  	30 July 2002, 3 years
g. Current Enlistment Service:  	2 years, 0 months, 27 days
h. Total Service:			2 years, 0 months, 27 days
i. Time lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3 
l. Military Occupational Specialty:	31B10, Military Police
m. GT Score:				99
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (030323-040316)
q. Decorations/Awards:		NDSM, GWOTEM, GWOTSM, ASR
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 30 July 2002, for a period of 3 years.  She was 18 years old at the time of entry and a high school graduate.  Her record indicates she served in Iraq and achieved the rank of PFC/E-3.  The record does not contain any evidence of acts of valor or meritorious achievements.  She completed 2 years and 27 days of active duty service.








SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service 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 that on 26 August 2004, the applicant was discharged under the provisions of Chapter 15, paragraph 15-3a, AR 635-200, for homosexual act, with a characterization of service of general, under honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) of JRA and a reentry (RE) code of 4.  

3.  On 25 August 2004, DA, HQ III Corps and Fort Hood, Fort Hood, TX, Orders Number 238-0206, discharged the applicant from the Army effective 26 August 2004.

4.  The applicant was discharged under Army Regulation 635-200, Chapter 15, for a homosexual act, after serving 2 years and 27 days of a 3 year enlistment.

5.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The applicant’s available record does not contain any negative counseling's or actions under the Uniform Code of Military Justice.  However, the record indicates the applicant achieved the rank of PFC/E-3 and was discharged as a PVT/E-1; the action that caused her grade reduction is not in the record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

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 available 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 applicant’s available 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.  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 achieved the rank of PFC/E-3 and was discharged as a PVT/E-1; 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:  22 January 2014     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 5-3
Change RE Code to:		3
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)		AR20130019565



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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