RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070008375 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Loretta D. Gulley

Analyst


The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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, an upgrade of his reentry (RE) code from RE-3 to RE-1 or RE-2.  

2.  The applicant states, in effect, that his discharge was unjust because his father was dying and he needed to be with him at that time.  He also states, in effect, that he is not homosexual but was told that was his only way of being with his father.  He finally states that he wants to serve his country and needs an RE code of 1 or 2.

3.  The applicant submitted no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he initially enlisted in the Regular Army and entered active duty on 18 May 2006.  He was not trained and not awarded a military occupational specialty (MOS).  The highest grade he attained was pay grade
E-1.

2.  In the applicant’s undated, self-authored, signed statement contained in his Official Military Personnel File (OMPF) he admits that he “came to realize” that he was homosexual and that he sought the help of his company commander.  He states that after speaking with his company commander he met with the Community Mental Health Services (CMHS) about his difficulties.  The applicant concluded his statement by admitting that his homosexuality interferes and prohibits his ability to be a Soldier.

3.  On 13 June 2006, the applicant self-referred to the CMHS stating that he was having difficulties adjusting to the military lifestyle because of his homosexuality.  The mental evaluation cleared the applicant for any administrative action deemed necessary. 

4.  On 14 June 2006, the applicant’s commander counseled the applicant and informed him that he was recommending to the chain of command that he be discharged under the provisions of Army Regulation 635-200, Chapter 15.  The applicant agreed with the counseling and did not make any comments.



5.  On 22 June 2006, the applicant was notified by his unit commander that separation action was being initiated on him under the provisions of Chapter 
15-3b, Army Regulation 635-200, by reason of Homosexual Conduct, with an uncharacterized discharge.    

6.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

7.  On 22 June 2006, the applicant’s commander forwarded his recommendation to the next higher authority.

8.  On 28 June 2006, the separation authority approved the discharge action and directed issuance of an Uncharacterized Discharge.

9.  On 5 July 2006, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 15 -3b, by reason of Homosexuality (Admission).  The separation document (DD Form 214) he was issued at the time confirms that he held the rank of private/E-1 (PV1), and had completed a total of 1 month and 
18 days of active military service.  The DD Form 214 also shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of JRB and an RE code of RE-4.  

10.  The applicant authenticated his 5 July 2006 DD Form 214 with his signature in Item 21 (Signature of Member Being Separated).  There is no indication that he questioned the SPD or RE codes listed on the separation document at that time.

11.  Army Regulation 635-200 (Enlisted Personnel) provides, in pertinent part, that homosexuality is incompatible with military service.  The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct, seriously impairs the accomplishment of the military mission.  Paragraph 15-3b provides the criteria for separation.  It states that the basis for separation may include pre-service, prior service, or current service conduct or statements.  A member will be separated if the member has stated that he or she is a homosexual or bisexual, unless there is a further finding that the member is not a homosexual or bisexual. 
12.  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 and processing into the Regular Army (RA) and the US 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, including RA RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

13.  Army Regulation 635-5-1 (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.  It states, in pertinent part, that the SPD code of JRB is the appropriate code to assign to Soldiers who separated under the provisions of paragraph 15-3b of Army Regulation 635-200, by reason of Homosexual Admission.  The SPD/RE Code Cross Reference Table included in the regulation stipulates that the appropriate RE code assignment for the SPD code of JRB is RE Code 4. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be without merit.

2.  There is no evidence in the applicant’s record or his self-authored statement that shows he was threatened, coerced, or intimated into admitting that he was homosexual.  There is no evidence in his record nor did the applicant state in his self-authored statement that he was told to admit to being a homosexual to be with his father.  Therefore the RE-4 code assigned to the applicant remains valid.

3.  There is no evidence in the applicant’s record that shows he had any family problems which would have resulted in him requesting a discharge during his active duty enlistment.  Therefore, the applicant's reentry code was correct at the time of his separation.

4.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  RE-4 applies to persons who are permanently disqualified for continued Army service.  By regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, Chapter 15-3b for Homosexuality (Admission).  This includes the assignment of 

his SPD and RE codes.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  As a result, the RE-4 code and the narrative reason for separation were and still are appropriate.  

5.  In order to justify correction of a military record 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___RML_  __EEM      DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____ Kathleen A. Newman ___
          CHAIRPERSON



INDEX

CASE ID
AR20070008375
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/12/06
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.