AR20140000801

IN THE CASE OF: Ms.

BOARD DATE: 6 February 2015

CASE NUMBER: AR20140000801
___________________________________________________________________________

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 to be 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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests a change to the characterization of her service from general, under honorable condition to honorable.

2. The applicant states, in effect, she wants to re-enlist into the military. She was advised to request an upgrade to her discharge based on the repeal of the Dont Ask Dont Tell policy that was in effect at the time of her discharge.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 2 January 2014
b. Discharge received: General, Under Honorable Conditions
c. Date of Discharge: 23 May 2007
d. Reason/Authority/SPD/RE: Homosexual Conduct (Admission), AR 635-200,
Chapter 15-3b, JRB, RE-4
e. Unit of assignment: Company F, 309th Military Intelligence Battalion,
Fort Huachuca, AZ
f. Current Enlistment Date/Term: 20 July 2006, 5 years
g. Current Enlistment Service: 10 months, 4 days
h. Total Service: 10 months, 4 days
i. Time lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 97E10, Interrogator
m. GT Score: NA
n. Education: HS Graduate
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: None
r. Administrative Separation Board: No
s. Performance Ratings: No
t. Counseling Statements: Yes
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 20 July 2006, for a period of 5 years. She was 18 years old at the time of entry and a high school graduate. Her record documents no acts of valor or significant achievements. She was serving at Fort Huachuca, AZ when her discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The applicants service record indicates on 5 April 2007, she admitted in a sworn statement during the 15-6 investigation that she engaged in homosexual acts. On 15 May 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 15, paragraph 15-3b, AR 635-200, for engaging in, attempting to engage in, or soliciting another person to engage in a homosexual act or acts; by reason of having admitted to being a homosexual and her desire to commit homosexual acts.

2. The unit commander recommended a general, under honorable conditions discharge and advised the applicant of her rights.

3. 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 on her own behalf. The unit commander subsequently recommended separation from the Army. The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.

4. On 16 May 2007, the separation authority directed the applicants discharge with a general, under honorable conditions discharge.

5. The applicant was separated with a General, under honorable conditions discharge on 23 May 2007, under Army Regulation 635-200, Chapter 15, paragraph 3b for homosexual conduct, (admission) with an SPD Code of JRB and an RE code of 4.

6. The applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Article 15, dated 2 May 2007, for committing sodomy with a PV1 B between on or about March 2007 and April 2007; disturb the public tranquility by moaning and groaning while having intimate physical contact with PV1 B after lights out, after being asked by other Soldiers to stop as to allow them to sleep; such disorder being prejudicial to good order and discipline in the armed forces between March 2007 and April 2007; willfully and wrongfully expose in an indecent manner to public view her naked body while having intimate physical contact with PV1 B, between March 2007 and April 2007, and wrongfully commit an indecent act with PV1 B by placing her finger into PV1 B vagina while in the open bay barracks area between on or about March 2007 and April 2007. The punishment imposed consisted of reduction to Private (E-1), forfeiture of $650.00 pay per month for two months, extra duty and restriction for 45 days (FG).

2. A counseling statement dated 9 April 2007, informing the applicant of her recommendation for separation under Chapter 15.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored letter dated, 2 January 2014, an electronic copy of
DD Form 293; a copy of the Human Resource Command (HRC) memorandum, dated 14 January 2008; a copy of her DD Form 214; and, a copy of her birth certificate.

POST-SERVICE ACTIVITY:

The applicant did not provide any 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 Soldiers overall record of service.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of service and a change to the narrative reason for her discharge was carefully considered. However, after examining the applicants record of service, the documents and the issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge.

2. The record confirms that the applicants discharge was appropriate because the quality of her service was not consistent with the Army’s standards for acceptable personal conduct by military personnel. The applicants homosexual acts had an adverse impact on the discipline, good order, and morale of her unit and diminished the quality of her service below that meriting an honorable discharge.

3. The service record indicates the applicant engaged in homosexual acts; in that she committed sodomy with a PV1 B; disturbed the public tranquility by moaning and groaning while having intimate physical contact with PV1 B after lights out, after being asked by other Soldiers to stop as to allow them to sleep; such disorder being prejudicial to good order and discipline in the armed forces; willfully and wrongfully expose in an indecent manner to public view her naked body while having intimate physical contact with PV1 B, and wrongfully committing an indecent act with PV1 B by placing her finger into PV1 B vagina while in the open bay barracks area under military control, were considered by her 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 applicants service mitigated the misconduct or poor duty performance.

5. The applicant contends she would like to reenlist into the Army and was advised to request an upgrade to her discharge based on the repeal of the Dont Ask, Dont Tell policy that was in effect at the time of her discharge. 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. 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 applicants discharge is commensurate with her overall service record.

6. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 6 February 2015 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: o
(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 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) AR20140000801

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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