Applicant Name: ????? Application Receipt Date: 2008/11/24 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293 submitted by the Applicant. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 070517 Discharge Received: Date: 070522 Chapter: 15-3C AR: 635-200 Reason: Homosexual Conduct (Marriage or Attempted Marriage) RE: SPD: JRC Unit/Location: Co F, 309th MI BN, Ft Huachuca, AZ Time Lost: None Article 15s (Charges/Dates/Punishment): 070502, commit sodomy with PFC S, disturb the public tranquility by moaning and groaning while having initimate physical contact with A PFC after "lights out" after being asked by other Soldiers to stop as to allow them to sleep, willfully and wrongfully expose in an indecent matter to public view your naked body while having initimate physical contact with a PFC and, wrongfully commit an indecent act with a PFC by placing your finger into a PFC's vagina while in the Open Bay barracks area on or about 0703-0704; forfeiture of $300 pay for two months, extra duty and restriction for 45 days (FG). Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 24 Current ENL Date: 061102 Current ENL Term: 5 Years ????? Current ENL Service: 00 Yrs, 06Mos, 21Days ????? Total Service: 00 Yrs, 06Mos, 21Days ????? Previous Discharges: None Highest Grade: E1 Performance Ratings Available: Yes No MOS: None GT: 100 EDU: NIF Overseas: None Combat: None Decorations/Awards: None V. Post-Discharge Activity City, State: Pensacola, FL Post Service Accomplishments: None submitted by the Applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 15 May 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 15, paragraph 15-2, AR 635-200, for engaging in, attempting to engage in, or soliciting another person to engage in a homosexual act or acts and admitting to being a homosexual and the desire to commit homosexual acts with a general, under honorable discharge. She was advised of her rights. On 16 May 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived her right to an administrative separation board, and did not submit a statement in her own behalf. The unit commander subsequently recommended separation from the service. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an honorable discharge. On 16 May 2007, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with an general, under honorable discharge. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 15 of that regulation states that active homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who actively engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct. The Army regulation states that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section III, and if there is 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. In all other cases, the type of discharge will reflect the character of the Soldier’s overall record of service. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records during the period of enlistment under review, the issue, and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. However, the analyst noted that the separation action under the provisions of Chapter 15, paragraph 15-2, AR 635-200 is the discharge policy, therefore the separation authority should read paragraph 15-3a, and the narrative reason specified by Army Regulations for a discharge under this paragraph is "Homosexual Conduct (Acts)” with the separation code as "JRA." 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 and separation code, entered in block 26 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. The analyst determined that no such unusual circumstances were present in the applicant’s record and the former Soldier’s service did not warrant an honorable discharge. Furthermore, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.” An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment. The analyst noted the applicant's issues and found no evidence of arbitrary or capricious actions by the command. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Furthermore, the analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline. This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. The method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. Therefore, the analyst recommends to the board the following administrative changes be made to the DD Form 214: block 25, separation authority changed to read, AR 635-200, para 15-3a, and the narrative reason in block 28 to "Homosexual Conduct (Acts)” with the separation code in block 26, "JRA". The analyst determined the characterization of service was both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 3 September 2009 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. In its review, the Board noted administrative errors on the DD Form 214 and directed an administrative correction be made to block 25, to read AR 635-200, paragraph 15-3a; block 28 to read “Homosexual Conduct, Acts” and block 26, to read “JRA”.. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: Homosexual Conduct (Acts) Other: SPD Code to "JRA" RE Code: Grade Restoration: No Yes Grade: NA ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20080019151 ______________________________________________________________________________ Page 3 of 3 pages