RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060010935 


	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.


Mr. Carl W. S. Chun

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Marla Troup

Chairperson

Mr. John Heck

Member

Mr. Donald Lewy

Member

	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 Reenlistment (RE) code be changed. 

2.  The applicant states that his RE code is unjust because of today’s “Don’t ask, Don’t tell” policy. 

3.  The applicant provides a letter of reference, dated 4 November 1986; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
5 December 1986.  The application submitted in this case is dated 28 July 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 enlisted on 10 July 1984.  He trained as a behavioral science specialist.  On 30 September 1986, the applicant’s commander requested that a mental status evaluation be conducted after the applicant approached him and stated that he wanted out of the Army and that “he is homosexual.” 

4.  On 5 December 1986, he was discharged under honorable conditions (a general discharge) under the provisions of Army Regulation 635-200, chapter
15-3, for admission of homosexuality.

5.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, Chapter 15-3."  Item 26 (Separation Code) on his DD Form 214 shows the entry, "JRB."  Item 27 (Reenlistment Code) on his DD Form 214 shows the entry, "RE-4."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "Admission of Homosexuality." 

6.  In support of his claim, the applicant provided a letter of reference, dated 
4 November 1986, from his then immediate supervisor.  
7.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JRB” is “Admission of Homosexuality/bisexuality” and the regulatory authority is Army Regulation 
635-200, chapter 15-3b.  

8.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

9.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  This includes anyone separated for “Homosexuality” (Includes persons who have committed homosexual acts, or is an admitted homosexual but as to whom no evidence exists that he or she has engaged in homosexual acts either before or during military service).

10.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

11.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

12.  On 28 February 1994, Department of Defense (DOD) instituted its current policy on homosexual conduct in the military.  In an April 1998 Report to the Secretary of Defense, Review of the Effectiveness of the Application and Enforcement of the Department’s Policy on Homosexual Conduct in the Military, prepared by the Office of the Under Secretary of Defense (Personnel and Readiness), it was noted that DOD’s policy provided that sexual orientation is a personal and private matter that is not a bar to military service unless manifested by homosexual conduct.  Applicants for military service could no longer be asked about their sexual orientation.  The services could not initiate investigations solely to determine a member’s sexual orientation unless credible information was received that a service member has engaged in homosexual conduct. 




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

2.  Under today’s “Don’t ask, Don’t tell” policy, the applicant would still have been separated for admission of homosexuality, with the same RE-4, because he voluntarily disregarded the “Don’t tell” portion of the policy. 

3.  Records show the applicant should have discovered the alleged error now under consideration on 5 December 1986; therefore, the time for the applicant to file a request for correction of any error expired on 4 December 1989.  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

MT_____  _JH_____  _DL_____  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.


__Marla Troup_________
          CHAIRPERSON




INDEX

CASE ID
AR20060010935
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0300
2.

3.

4.

5.

6.