RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 April 2008
	DOCKET NUMBER:  AR20070018493 


	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

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Eric N. Anderson

Chairperson

Mr. Peter B. Fisher

Member

Mr. Jeffrey C. Redmann

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 the reentry (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from RE-4 to RE-3 or higher in order to reenter the Army.

2.  The applicant states that he was scared while in basic combat training, so he admitted homosexuality.  However, he has matured since and realized that military service is the best possible career path for him to follow.  He further adds that since discharge, he has worked in construction and financial services and gotten married and raised a family.  He also states that military service would provide him with a goal oriented career path as well as benefits and honor.  He concludes that he only asks for an opportunity to right the wrong and honorably serve his country.

3.  The applicant provided a character reference letter from a recruiter, dated 2 November 2007, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that the he enlisted in the Regular Army for a period of 4 years on 23 October 2004 and reported to Fort Jackson, South Carolina for basic combat training.

2.  On 5 November 2004, in a memorandum for record, the applicant’s immediate commander remarked that the applicant admitted to him that he was homosexual and has indicated that he would not conform to the Department of Defense Homosexual Conduct Policy.  During counseling, the applicant indicated that he understood the Army policy and stated he would not conform to that policy.  The immediate commander further remarked that in light of those circumstances, he felt it would be in the best interests of the Army and the Soldier to proceed with separation proceedings in accordance with chapter 15 of Army Regulation     635-200 (Personnel Separations). 

3.  On 23 November 2004, the applicant acknowledged that he was afforded the opportunity to consult with counsel regarding the basis for his contemplated separation and its effects, the rights available to him, and the waiver of those rights.  However, he voluntarily and knowingly waived the opportunity to speak with counsel.  


4. On 29 November 2004, by memorandum, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 15 of Army Regulation 635-200, for homosexual conduct.  He further recommended the applicant receive an uncharacterized, entry level character of service. 

5.  On 29 November 2004, the applicant acknowledged receipt of the separation notification.  He further declined the opportunity to speak with a lawyer prior to completing the acknowledgement, waived consideration of his case by an administrative separation board, waived personal appearance before an administrative board, waived submitting a statement on his behalf, and waived consulting with counsel.  The applicant further indicated that he understood that he could encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him and that as a result of issuance of this type of discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.

6.  On 29 November 2004, the applicant's immediate commander initiated separation action against the applicant in accordance with chapter 15 of Army Regulation 635-200.  The immediate commander remarked that the applicant had made a statement declaring he was homosexual and that he was briefed on the Army policy on homosexual conduct in effect at the time and stated that he understood the policy and would not conform to it.

7.  On 29 November 2004, the applicant’s intermediate commander recommended approval of the separation.  He further recommended the applicant receive an uncharacterized term of service with the issuance of an Entry Level Separation.   

8.  On 30 November 2004, the separation authority approved the applicant's separation for homosexual conduct in accordance with chapter 15 of Army Regulation 635-200 and directed his term of service be uncharacterized and he receive an Entry Level Separation.  On 9 December 2004, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 month and 17 days of active military service and shows he was given a character of service of "Uncharacterized," a Separation Code of "JRB," and a Reentry code of “4.”

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 states in pertinent part that a Soldier will be discharged if 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.  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 engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  The Soldier will be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence that demonstrates he/she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts.  The Soldier bears the burden of rebutting the presumption.  

10.  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 and if there is a finding during the current term of service that the Soldier attempted, solicited, or committed a homosexual act by using force, coercion, or intimidation with: a person under 16 years of age; with a subordinate in circumstances that violate customary military superior–subordinate relationships; openly in public view; for compensation; aboard a military vessel or aircraft; or 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.  In all other cases, the type of discharge will reflect the character of the Soldier’s service. 

11.  A separation is described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. Characterization of service as honorable is considered on a case-by-case basis, when it is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  

12.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "JRB" Separation Code is the correct code for Soldiers separating under chapter 15 of Army Regulation 635-200, Homosexual Conduct (Admission).

13.  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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army 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 Regular Army RE codes.

	a.  RE–1 applied to persons who completed an initial term of active service who were fully qualified for enlistment when separated;

	b.  RE-3 applied to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification was waivable; and

	c.  RE-4 applies to individuals separated from last period of service with a nonwaiverable disqualification.  This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years of active federal service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code, currently RE-4, should be changed to RE-3 or higher to allow him to reenter the Army. 

2.  The applicant’s post service personal and professional achievements were noted.  However, inasmuch as the applicant was discharged based on his own admission of homosexuality, the reason and authority for discharge are correct as currently shown on his DD Form 214.

3.  Evidence of records shows that the applicant was counseled regarding separation for homosexuality.  There is no evidence that this action was in error or unjust or that his admission was false.  As a result, the applicant was separated under the provisions of chapter 15 of Army Regulation 635-200. 

4.  At the time of his separation, he received a separation code of JRB and an RE code of 4.  The SPD code of JRB was the appropriate code for the applicant based on the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of chapter 15 of Army Regulation 635-200.  Furthermore, such a discharge carries a reentry code of RE-4.  The SPD and RE codes entered on his DD form 214 are consistent with the reason and authority for discharge.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement

6.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The RE-4 assigned to the applicant at the time of his discharge is correct.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ena___  __pbf___  __jcr___  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.




							Eric N. Anderson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.