RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060009308 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his uncharacterized discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 15 (Discharge for Homosexual Conduct) be changed to a medical discharge. 

2.  The applicant essentially states that he was supposed to receive a medical discharge, but instead received an uncharacterized discharge with a reentry (RE) code of 4.  He also states, in effect, that he was trying to reenlist, but cannot because of his discharge and RE code. 

3.  The applicant provides extracts of his medical records and a DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States) in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
18 December 2002, the date of his uncharacterized discharge from the Regular Army.  The application submitted in this case is dated 26 June 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show that he enlisted in the Regular Army on 
1 August 2002.

4.  On 2 December 2002, the applicant was counseled by his platoon sergeant.  The platoon sergeant essentially stated that the applicant admitted in a letter addressed to him that he was involved in a relationship with another male Soldier, and that he was gay.  The platoon sergeant told that applicant that he was being recommended for separation under Army Regulation 635-200, Chapter 15, for homosexuality.

5.  On 4 December 2002, the applicant’s mental status was evaluated, and he was psychiatrically cleared for administration action deemed appropriate by his command.

6.  On or about 6 December 2002, the applicant’s commander informed him that he was initiating action to separate him for homosexual conduct.  The reason for his proposed action was that the applicant made a statement declaring that he was a homosexual.  The applicant’s commander recommended that he receive an entry-level separation, and advised him that he had the right to consult with legal counsel, and the right to submit statements on his own behalf.  He also advised the applicant that he may request a hearing before an administrative separation board.

7.  On 10 December 2002, the applicant acknowledged receipt of notification of the recommendation for separation under the provisions of Army Regulation 
635-200, Chapter 15, paragraph 15-3b.  He also acknowledged that before completing his elections, he was afforded the opportunity to consult with appointed counsel, but that he declined the opportunity.  He also waived consideration of his case by an administrative separation board, and elected not to submit statements on his own behalf.  He also waived legal counsel.

8.  The paperwork regarding the applicant’s discharge was forwarded up the chain of command, with the acting battalion commander recommending approval, and recommending that the applicant receive a term of service as uncharacterized with the issuance of an entry-level separation.  Although the approval document was not in his military records, the applicant was clearly discharged from the Regular Army on 18 December 2002.  The DD Form 214 (Certificate of Release or Discharge From Active Duty) issued to him at the time of his discharge shows the authority for his discharge was Army Regulation 
635-200, paragraph 15-3b.  Item 28 (Narrative Reason for Separation) of this document has the entry, “Homosexual Admission,” and Item 24 (Character of Service) has the entry, “Uncharacterized.”

9.  There is no evidence in the applicant’s military or medical records that shows that he was being considered for a medical discharge at any time.

10.  Paragraph 15-3b of Army Regulation 635-200 provides that a Soldier will be discharged if he or she made a statement that he or 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. 
11.  Army Regulation 635-200 also provides, in pertinent part, that entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated while in an entry level status will be uncharacterized.

12.  Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This regulation establishes the SPD code of JRB as the appropriate code to assign Soldiers separated under the provisions of paragraph 15-3b, Army Regulation AR 635-200, based on admission of being a homosexual.  Additionally, the SPD/RE Code Cross Reference Table establishes RE Code 4 as the proper reentry code to assign to soldiers separated under this authority and for this reason.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-2c states, in effect, that the ABCMR is not an investigative body, and that it will decide cases on the evidence of record.  Paragraph 2-9 of the same regulation states, in pertinent part, that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his uncharacterized discharge under the provisions of Army Regulation 635-200, Chapter 15 should be changed to a medical discharge. 

2.  The applicant’s contention that he was supposed to receive a medical discharge was rejected.  There is no evidence in the applicant’s military or medical records which shows that the applicant was being considered for a medical discharge at any time.  

3.  Evidence of record clearly shows that the applicant admitted to being involved in a relationship with another male Soldier, that he was gay, and that he was discharged according to Army Regulation 635-200, paragraph 15-3b for admitting that he was a homosexual.  





4.  Evidence of record also confirms that his discharge processing was accomplished in accordance with applicable regulations and that his discharge accurately reflects his overall record of service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  In order to justify correction of a military the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 December 2002; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
17 December 2005.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MM  __  __JM____  __QS  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




______Mark Manning________
          CHAIRPERSON




INDEX

CASE ID
AR20060009308
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
20021218
DISCHARGE AUTHORITY
AR 635-200, PARAGRAPH 15-3B 
DISCHARGE REASON
HOMOSEXUAL ADMISSION
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.5900.0000
2.

3.

4.

5.

6.