IN THE CASE OF: Mr. BOARD DATE: 14 November 2014 CASE NUMBER: AR20140013841 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant's service, and the circumstances surrounding his discharge mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant partial relief in the form of a change to the narrative reason for separation to Secretarial Authority with a corresponding SPD Code of JFF. This action entails a change to the reentry eligibility (RE) code to 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. Counsel requests an upgrade of the applicant’s uncharacterized discharge to honorable, a change to the narrative reason for separation, separation code, and his reentry code. 2. Counsel states, in effect, the applicant was discharged for reasons of homosexual admission. Since then, the law has changed; therefore, counsel contends the applicant is entitled to corrections of his service record. Counsel contends the applicant’s narrative reason for discharge, separation code, and reentry code should be changed pursuant to the Department of Defense guidance. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 11 August 2014 b. Discharge Received: Uncharacterized c. Date of Discharge: 30 June 2009 d. Reason/Authority/SPD/RE Code: Homosexual Conduct (Admission), AR 635-200, Chapter 15-3b, JRB, RE-4 e. Unit of assignment: C Company, 30th Adjutant General (Reception) Battalion, Fort Benning, Georgia f. Current Enlistment Date/Term: 12 May 2009/4 years, 16 weeks g. Current Enlistment Service: 1 month, 19 days h. Total Service: 1 month, 19 days i. Time Lost: None j. Previous Discharges: DEP, 090227-090511, N/A k. Highest Grade Achieved: E-1 l. Military Occupational Specialty: None m. GT Score: 115 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: None r. Administrative Separation Board: N/A s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 12 May 2009 for a period of 4 years. He was 35 years old at the time of entry and a high school graduate. He completed 1 month and 19 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Benning, Georgia. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s service record indicates that on 4 June 2009, the unit commander notified the applicant of initiation of discharge proceedings under the provisions of AR 635-200, Chapter 15, paragraph 15-3b, by reason of homosexual conduct (admission). 2. The unit commander recommended a characterization of service of an entry level, uncharacterized, and advised the applicant of his rights. 3. On 4 June 2009, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, waived his right to an administrative separation board, and elected to submit a statement on his behalf. The record is void of the applicant’s statement. The unit commander subsequently recommended separation from the Army. The intermediate commander reviewed the proposed action and recommended approval with an entry level characterization. 4. On 22 June 2009, the separation authority directed the applicant’s discharge with an entry level characterization of service. 5. The applicant was separated with an uncharacterized discharge on 30 June 2009, under Army Regulation 635-200, Chapter 15-3b, for homosexual conduct (admission), with an SPD Code 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: Handwritten note addressed to the commander, dated 18 May 2009, written by the applicant, declaring that he, the applicant, is a homosexual that intends to engage in homosexual conduct in breach of the Army’s Homosexual Policy. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided a DD Form 293, dated 11 August 2014, and a DD Form 214 covering the period of service under review. 2. Brief of Counsel, 13 pages, provides preliminary statement and outlines statement of facts, legal authority, along with legal arguments in support of the application. POST-SERVICE ACTIVITY: None was 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 discharge, change to the narrative reason for separation, separation code, and his reentry code were carefully considered. 2. After a careful review of all the applicant’s military records, the issues submitted with the application, the characterization of service and reason for the discharge were found to be inequitable. 3. The record confirms the applicant was discharged under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, in effect at the time, by reason of homosexual admission. Army Regulation (AR) 635-200, in effect at the time, stipulated that an honorable discharge is a separation with honor and the honorable characterization is appropriate when the quality of the Soldier’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. 4. Further, current law and regulations 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. Army Regulation 635-200 provides in pertinent part, that 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 a probationary period. Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status. The Regulation 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. Furthermore, a general, under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct or performance of duty. The applicant’s service record indicates no such unusual circumstances were present and did not warrant an honorable discharge. 6. The records show the proper discharge and separation procedures were followed in this case. 7. Therefore the characterization of service is equitable and the reason for discharge being inequitable, recommend the Board grant partial relief by changing the narrative reason for discharge to Secretarial Authority, under the provisions of Chapter 5, paragraph 5-3, AR 635-200, with a corresponding SPD Code of JFF, and a reentry code (RE) of 1. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 14 November 2014 Location: Washington, DC Did the Applicant Testify? NA Counsel: Yes [redacted] 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: 1 Grade Restoration to: NA Other: Separation Program Designator (SPD) to 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) AR20140013841 Page 5 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1