1. Applicant's Name: a. Application Date: 22 February 2016 b. Date Received: 3 March 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and a change to the reentry eligibility (RE) code. The applicant seeks relief contending, in effect, he just found out about the Memorandum for Secretaries of the Military Department, dated 22 July 2011, subject: Repeal of Don't Ask Don't Tell. In a records review conducted at Arlington, VA on 17 May 2017, and by a 5-0 vote, the Board determined that the characterization of service was both proper and equitable and voted to deny relief. The Board determined there were aggravating factors related to the applicant's discharge (i.e. the applicant committed a military sexual assault as a perpetrator - forcible sodomy, indecent assault, and burglary). The serious nature of the actual offenses justify denying an upgrade of his characterization of service to honorable. Despite this, the Board determined the narrative reason for the applicant's discharge and the reentry code are now inequitable based on the current standard. Therefore, the Board voted to change the reason for discharge to "Secretarial Authority," under the provisions of AR 635-200, Chapter 5, paragraph 5-3, with a corresponding SPD Code of "JFF." (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Homosexual (Acts) / AR 635-200, Paragraph 15-3a / JRA / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 23 March 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 March 2007 (2) Basis for Separation: Homosexual conduct - on or about 16 March 2007, the applicant committed an indecent assault upon PVT X (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 21 March 2007 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 21 March 2007 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 20 May 2004 / 3 years, 16 weeks b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 101 c. Highest Grade Achieved / MOS / Total Service: E-4 / 11B10, Infantryman / 2 years, 10 months, 3 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Iraq (dates NIF) f. Awards and Decorations: AAM-2, ICM, ASR, OSR, CIB g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: The documents, dated 17 March 2007, pertaining to the criminal investigation into suspected forcible sodomy, indecent assault, and burglary that led to the applicant's discharge include the following: CID Agent Statement Sworn Statements Special Agent X. CPL X (applicant) PVT X (victim) Special Agent X SGT X (CQ) SPC X (victim's neighbor) Interview Canvas Sheet Special Agent X. PFC X SPC X SGT X SGT X Report of Mental Status Evaluation, dated 20 March 2007, indicates the applicant was diagnosed with (Axis I) Legal Problems and Alcohol Abuse, episodic. He was psychiatrically cleared for administrative action deemed appropriate by his command. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application and DD Form 214. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): 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. 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his general (under honorable conditions) discharge to honorable and a change to the reentry eligibility (RE) code. The applicant's available record of service, and the issues and document submitted with his application were carefully reviewed. The evidence of record shows the applicant was separated under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, by reason of homosexual admission, with a general under honorable conditions discharge. The regulation, in effect at the time, stipulated that an honorable discharge was a separation with honor and was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would be clearly inappropriate. In cases where no aggravating factors were present, the characterization of the discharge would reflect the character of the Soldier's overall record of service. The record of service shows that on or about 16 March 2007 the applicant committed an indecent assault on PVT J.D.F, a violation of Article 120, Uniform Code of Military Justice, which would have given the commander the basis to recommend a general (under honorable conditions) discharge. By the misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge. 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, such that he should have been retained. However, 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 as defined in AR 635-200. The records show the proper discharge and separation authority procedures were followed in this case. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 17 May 2017, and by a 5-0 vote, the Board determined that the characterization of service was both proper and equitable and voted to deny relief. The Board determined there were aggravating factors related to the applicant's discharge (i.e. the applicant committed a military sexual assault as a perpetrator - forcible sodomy, indecent assault, and burglary). The serious nature of the actual offenses justify denying an upgrade of his characterization of service to honorable. Despite this, the Board determined the narrative reason for the applicant's discharge and the reentry code are now inequitable based on the current standard. Therefore, the Board voted to change the reason for discharge to "Secretarial Authority," under the provisions of AR 635-200, Chapter 5, paragraph 5-3, with a corresponding SPD Code of "JFF." 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, Chapter 5-3 e. Change SPD / RE Code to: Change SPD to JFF / No Change to RE code f. Restore (Restoration of) Grade to: No Change AUTHENTICATING OFFICIAL: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160004590 4