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AR 635-200 Active Duty Enlisted Administrative Separations (19 Dec 2016)
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Discharge for Homosexual Conduct
15-2. Discharge policy
a. Homosexual conduct is grounds for separation from the Army under the criteria set forth in paragraph 15-3. This includes preservice, prior service, or current service homosexual conduct.
(1) Homosexual conduct is engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts; a statement by the Soldier that he or she is a homosexual or bisexual, or words to that effect; or marriage or attempted marriage to a person known to be of the same biological sex.
(2) A Soldier's sexual orientation is considered a personal and private matter and is not a bar to continued service unless manifested by homosexual conduct as described in paragraph 15-3.
Comentario: Entregar una declaración, como la carta tipo, es "conducta homosexual" pero no "un acto homosexual"
b. The foregoing does not preclude
(1) Retention of the Soldier in the Army when it is determined that the purpose of the Soldier's homosexual conduct is to avoid or terminate military service and separation of the Soldier would not be in the best interest of the Army.
(2) Trial by court-martial in appropriate cases.
(3) Conviction by court-marital in appropriate cases. Conviction by court-martial that did not impose a punitive discharge does not prevent initiation of administrative discharge proceedings under this chapter.
(4) Separation, in appropriate circumstances, for another reason specified in this regulation.
(5) Retention of the Soldier for a limited period of time in the interest of national security when discharge under this chapter has been approved. ...
Comentario: Lo pueden retener si pueden demostrar que hizo la declaración sólo para que lo separaran.
15-3. Criteria for discharge
Except as indicated, a Soldier will be discharged if one or more of the following findings has been made and is approved by the separation authority:
Comentario: La frase "will be discharged" quiere decir que el mando tiene que separar (discharge) a un militar que entrega la carta tipo a menos que él o ella demuestre que no hace, no intenta hacer, etc. actos homosexuales. Es decir, para que separe a usted, no tiene que "demostrar" que hace actos homosexuales. Lo que esto dice es que para permanecer en el Army, usted tendría que "demostrar" que no los hace.
a. The Soldier has engaged in, attempted to engage in, or solicited another person to engage in, a homosexual act or acts unless there are further approved findings that the Soldier has demonstrated that-
(1) Such acts are a departure from the Soldier's usual and customary behavior.
(2) Such acts under all the circumstances are unlikely to recur.
(3) Such acts are not accomplished by the use of force, coercion, or intimidation.
(4) Under the particular circumstances of the case, the Soldier's continued presence in the Army is consistent with the interest of the Army in maintaining proper discipline, good order, and morale.
(5) The Soldier does not have a propensity or intent to engage in homosexual acts. In determining whether retention is appropriate, separation boards/authorities must ensure that all of the above limited conditions are met. Additionally, a determination as to whether retention is warranted under the limited circumstances is required if the Soldier clearly and specifically raises such limited circumstances. However, the Soldier bears the burden of proving, by a preponderance of the evidence, that retention is warranted under the limited circumstances.
b. The Soldier has made a statement that he/she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the Soldier has demonstrated that he/she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
(1) A statement by the Soldier that he/she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the Soldier is a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
(2) The Soldier will be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence that demonstrates he/she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The Soldier bears the burden of rebutting the presumption. In determining whether a Soldier has successfully rebutted the presumption, some or all of the following may be considered:
(a) A statement under oath by the Soldier that he or she is not a person who engages in, attempts to engage in, has a propensity to engage, or intends to engage in homosexual acts.
(b) Whether the Soldier has engaged in homosexual acts.
(c) Testimony from others about the Soldier's past conduct, character, and credibility.
(d) The nature and circumstances of the Soldier's statement.
(e) Any other evidence relevant to whether the member is likely to engage in homosexual acts.
c. The Soldier has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved).
15-4. Characterization or description of service
a. When the sole basis for separation is homosexual conduct, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section II and if there is a finding during the current term of service that the Soldier attempted, solicited, or committed a homosexual act
(1) By using force, coercion, or intimidation.
(2) With a person under 16 years of age.
(3) With a subordinate in circumstances that violate customary military superior-subordinate relationships.
(4) Openly in public view.
(5) For compensation.
(6) Aboard a military vessel or aircraft.
(7) In another location subject to military control under aggravating conditions noted in the finding that have an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft.
b. In all other cases, the type of discharge will reflect the character of the Soldier's service. (See chap 3, sec II.)
15-6. Action by unit or immediate commander
a. Only a commander in the Soldier's chain of command, in the grade of O-7 or higher, is authorized to initiate separation proceedings on the basis of alleged homosexual conduct.
15-7. Action by separation authority
On receipt of a recommendation for discharge for homosexual conduct, the separation authority may take one of the following actions:
a. Disapprove the recommendation when there is insufficient evidence of one or more of the circumstances for which discharge is authorized. (See para 15-3.)
b. Disapprove the recommendation for discharge for homosexual conduct and take other appropriate action, under this regulation, to determine whether the Soldier should be separated for another reason for which he/she has been duly notified.
c. Convene an administrative separation board, as prescribed in chapter 2, section II, to determine whether the Soldier should be discharged for homosexual conduct.
d. When the Soldier has waived the right to a hearing by an administrative separation board-
(1) Direct retention of the Soldier if the separation authority determines there is insufficient evidence to support discharge for homosexual conduct, unless there is another basis for separation for which the Soldier has been duly notified.
(2) Direct discharge of the Soldier if the separation authority determines that one or more of the circumstances for which discharge is authorized (see para 15-3) has occurred, unless retention is warranted under the limited circumstances described in paragraphs 15-3a(1) through (5).
e. Process the case through medical channels when the conditions of paragraph 1-33 have been met.
15-8. Administrative separation board
The board will follow the procedures outlined in chapter 2, section II, except as follows:
a. The board will make no inquiry or finding concerning sexual orientation.
b. If the board finds that a preponderance of the evidence supports one or more of the circumstances authorizing discharge under paragraph 15-3, it will recommend discharge unless it finds that retention is warranted under the circumstances described in paragraphs 15-3a(1) through (5).
c. If the board does not find that one or more of the circumstances authorizing discharge (see para 15-3) is supported by a preponderance of the evidence, it will recommend retention unless the case involves another basis for separation for which the Soldier has been duly notified.