RECORD OF PROCEEDINGS


IN THE CASE OF:	  


BOARD DATE:	08 May 2008						
	DOCKET NUMBER:  AR20080004981


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 that his character of discharge and reentry code be upgraded.

2.  The applicant states, in effect, that he was young and lied while in advanced individual training, claiming to be homosexual to effect his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military service record shows that he enlisted in the United States Army on 4 June 1997.  There is no evidence to indicate that the applicant completed basic training or advanced individual training, or that he was awarded a military occupational specialty.  The highest rank the applicant achieved was private/pay grade E-1.

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  On 27 August 1997, the applicant voluntarily disclosed to the battalion commander, first sergeant, drill sergeant, and mental health staff that he was homosexual and currently involved in a homosexual relationship.  He continued that he was a threat to the other Soldiers residing in the barracks.

5.  On 27 August 1997, the applicant was counseled by his commanding officer that action would be initiated to discharge him from the service for homosexual conduct under the provisions of chapter 15 of Army Regulation 635-200 (Personnel Separations), and that further problems could result in his discharge under other than honorable conditions.

6.  On 1 September 1997, the applicant was advised by his commanding officer that action was initiated to discharge him from the service for homosexual conduct under the provisions of chapter 15 of Army Regulation 635-200, with an uncharacterized entry-level status separation.  His commanding officer further advised him that the intermediate commander(s) could recommend a less favorable type of discharge and characterization.

7.  On 8 September 1997, the applicant was advised by his consulting counsel of the basis for the contemplated separation action for homosexuality and its effect, and of the procedures and rights that were available to him.  The applicant acknowledged that he understood that if issued a general discharge under honorable conditions, or a discharge under other than honorable conditions, he could encounter substantial prejudice in civilian life and that he could be ineligible for many or all of the benefits which veterans are entitled to under Federal and State laws.

8.  On 18 September 1997, the applicant's commanding officer recommended separation under the provisions of chapter 15 of Army Regulation 635-200.  The recommendation cited the applicant’s admission that he was homosexual and currently involved in a homosexual relationship.

9.  On 24 September 1997, the separation authority directed that the applicant be discharged with an entry-level status separation of uncharacterized.

10.  On 3 October 1997, the applicant was separated under the provisions of chapter 15 of Army Regulation 635-200 with an uncharacterized discharge.  The applicant was issued a DD Form 214 which reflects paragraph 15-3a of Army Regulation 635-200 as the separation authority for homosexual act; the entry "JRA" (Homosexual Conduct Acts) in block 26 (Separation Code); and the entry "4" in block 27 (Reentry Code), which is applied to a person separated from the service with a nonwaivable disqualification rendering the applicant ineligible for enlistment.  The applicant completed a total of 3 months and 26 days of creditable active military service during this period.

11.  On 4 May 2007, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  Army Regulation 635-200 sets forth the policy for separation of enlisted personnel for homosexuality.  Chapter 15 of this regulation states that homosexuality is incompatible with military service and provides, in pertinent part, for the administrative separation of persons who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.  When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued.  Paragraph 15-4 of this regulation provides that the type of discharge will reflect the character of the Soldier's service.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes verification and qualification for prior service personnel.  Chapter 3 (Enlistment in the Regular Army, Army Reserve, or Army National Guard for Prior Service Applicants), states that a reentry code is not upgraded unless it was administratively incorrect when originally issued, and that a waiver may or may not be authorized depending on the disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge and reentry code be upgraded was carefully considered and determined to be without merit.

2.  The applicant contends that his discharge and reentry code should be upgraded because he was young at the time of his service.  Records show that the applicant was 19 years old at the time of his separation.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's military service record shows that he executed a sworn statement to the effect that he was homosexual and currently involved in a homosexual relationship.

4.  The applicant's record shows that he was counseled regarding separation for homosexuality and the possible negative effects of this discharge. There is no evidence that he indicated at that time that this action was in error or unjust, or that his statement was false.

5.  The applicant states in his application that he lied while in advanced individual training, claiming to be homosexual to effect his discharge.  Other than his own contention, there is no evidence that his sworn statement was false or otherwise in error.  The applicant's administrative separation was accomplished in compliance with applicable regulatory guidance with no indication of procedural errors that would jeopardize his rights.

6.  Inasmuch as the applicant was discharged based on his own admission of homosexuality, the reason and authority for discharge is correct as currently constituted.  He was discharged under the provisions of chapter 15 of Army Regulation 635-200.  The separation and reentry codes associated with this type of discharge are “JRA” and “RE-4” per the cross-reference tables in effect at the time.  Therefore, based on the available records, there is no basis to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080004981



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508