RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2008
	DOCKET NUMBER:  AR20070017000 


	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. Deyon D. Battle

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Donald L. 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, correction of appropriate military records to show a reentry eligibility (RE) code which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.  Therefore, he also requests that his Narrative Reason for Separation be changed.

2.  The applicant states that he is not, nor has he ever been, a homosexual.  He states that he has never engaged, nor has he any desire to engage, in homosexual activity.  He states that the written statement, which was the primary and only piece of evidence leading to his separation, was completely fabricated; that he is prepared to undergo counseling and/or rehabilitation in order to confirm that he has no desire to engage in homosexual conduct; and that his signed ineligibility period for reenlistment was false.

3.  The applicant provides in support of his application, a copy of a Developmental Counseling Form (DA Form 4856) dated 2 February 2005; a letter from his mother dated 15 November 2007, addressed "To Whom It May Concern"; a letter of recommendation from a recruiter dated 19 November 2007, addressed "To Whom It May Concern"; a self authored letter dated 16 November 2007, addressed to the Board; a letter authored by his brother dated 17 November 2007; a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214); portions of his discharge proceedings; copies of what appears to be identification cards; a list of his academic achievements; a copy of a certificate, which shows that he earned an Associate Degree in Arts Social/Behavioral Science; a copy of an undated Sworn Statement, that he provided to a drill sergeant, a noncommissioned officer in his chain of command; and a copy of a Sworn Statement, provided by the drill sergeant, dated 
30 January 2005.

CONSIDERATION OF EVIDENCE:

1.  On 3 January 2005, the applicant enlisted in the Regular Army (RA) in San Diego, California, for 5 years, in the pay grade of E-3.  

2.  The available records indicate that on 30 January 2005, the applicant went to the office of his drill sergeant and stated that he was a homosexual.  The Sworn Statement that the drill sergeant completed indicates the drill sergeant informed the applicant of the Army's "don't ask, don’t tell" policy, and that he was not required to tell anyone that he was gay.

3.  In an undated Sworn Statement the applicant stated that on 13 January 2005, he approached his drill sergeant and informed him that he was a homosexual.  In the Sworn Statement, the applicant told the drill sergeant that he was uncomfortable in close quarters with other men who would make innocent jokes of a sexual nature.

4.  The applicant was counseled on 2 February 2005, regarding separation procedures.  During the counseling, the applicant was informed that separation proceedings were being initiated against him under the provisions of Army Regulation 635-200, paragraph 15, based on the written statement that he made on 30 January 2005, and on the verbal statements he made to his commanding officer on 31 January 2005.  The applicant was told that before action to separate him was initiated, he would be provided an explanation of the Army's current policy on homosexual conduct; and that after he heard the correct policy, if he desired to change or clarify anything about his statement, he would be allowed to do so.  The applicant's commanding officer went on to explain the Army's current policy on homosexual conduct and the effects of a less than fully honorable discharge.

5.  On 17 February 2005, the applicant was informed that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 15, due to his homosexual admission.  The commanding officer cited the applicant's voluntary admission that he was a homosexual; the applicant's belief that he would commit homosexual acts; and the applicant's refusal to conform to military standards as his basis for the recommendation for discharge.

6.  The applicant acknowledged receipt of the recommendation for discharge on 2 March 2005, and he indicated that he understood that he would be ineligible to apply for enlistment in the United States Army for a period of 2 years after his discharge.

7.  The appropriate authority approved the recommendation for discharge on 2 March 2005, and he directed the character of service be uncharacterized.  Accordingly, on 12 April 2005, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 15-3B, due to homosexual admission.  He had completed 3 months and 10 days of net active service and he was furnished an RE-4 code.

8.  On 10 January 2007 the Army Discharge Review Board denied the applicant's petition to change the reason for his discharge and his RE code.


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation states that homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.

10.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of release from active duty or discharge.

11.  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 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.  This regulation provides that when an individual's Narrative Reason for Separation is homosexual admission, an RE-4 code will be assigned.  An RE-4 code applies to persons with a non-waivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated and assigned an RE code in accordance with the applicable regulation.  

2.  The Narrative Reason for Separation currently reflected on his DD Form 214 properly reflects that he was discharged due to homosexual admission.  Therefore, he was properly assigned an RE-4 code.

3.  The letters that the applicant submitted in support of his application have been noted and he is commended for his post service accomplishments.  However, the fact that he now has a desire to reenter the Armed Forces is not a sufficient justification to change the RE code or the Narrative Reason for Separation that he was assigned.  His DD Form 214 was prepared to reflect his service as it existed at that time of his discharge and at that time, he admitted to being homosexual and his belief that he would commit homosexual acts.  This information was properly annotated on his DD Form 214 and the RE-4 code that he was assigned coincides with her Narrative Reason for Separation. 


4.  The applicant's contention regarding his ineligibility period for reenlistment has also been noted.  However, at the time that he acknowledged receipt of the recommendation for discharge he was informed that he would be ineligible to apply for enlistment in the United States Army for a period of 2 years after his discharge.  This information is not false as he contends.  He became eligible to apply for reenlistment in the Army on 12 April 2007, and he has the right to apply for reenlistment.  However, as a result of his reason for separation, the RE code that he was furnished is not waivable.

5.  In order to justify correction of a military record the applicant must show 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS__  __ECP__  __DLL___  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.





____Linda D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR20070017000
SUFFIX

RECON

DATE BOARDED
20080320
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  1021
100.0000/ADMINISTRATIVE MATTERS
2.  4
100.0300/CHANGE RE CODE
3.  189
110.0000/DISCHARGE DOCUMENT
4.  191
110.0200/REASON AND AUTHORITY
5.

6.