IN THE CASE OF:
BOARD DATE: 22 July 2008
DOCKET NUMBER: AR20080006518
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that her Reentry (RE) Code 4 be changed so that she may reenlist in the Army.
2. The applicant states that she was young and did not know any better. She wanted to be with her family and was worried about her grandmother who was diagnosed with a life threatening sickness. She mentioned to a friend that she could get out of the Army and have a chance to spend time with her grandmother if she was thought to be gay. She is now very ashamed of what she did and has regretted it ever since. Most of her happiness was while in the Army and knows it was wrong to lie. She would like another chance and asks that her RE Code be changed.
3. The applicant provides no additional documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 17 May 2000, the applicant enlisted in the Regular Army. She completed her initial training and was awarded military occupational specialty 63W (Wheeled Vehicle Repairer).
3. The applicant's Certificate of Release or Discharge from Active Duty
(DD Form 214) indicates that she was discharged under the provisions of Army Regulation 635-200, paragraph 15-3B, for homosexual admission. Her character of service is shown as honorable. She was given a separation program designator (SPD) code of JRB and a RE code of 4.
4. The administrative discharge packet is not available for review.
5. Army Regulation 635-200, Chapter 15 sets forth the basic authority for the separation of enlisted personnel for homosexual conduct. Paragraph 15-3b applies to those Soldiers who make a homosexual admission.
6. Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes. RE 4 applies to persons separated from their last period of service with a non-waivable disqualification. That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
7. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JRB was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200 for homosexual admission. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.
2. The RE Code 4, establishing her ineligibility for enlistment/reenlistment, was correctly entered on her separation document in accordance with governing regulations.
3. There is no apparent basis for removal or waiver of the applicants disqualification that established the basis for the RE Code of 4. While the applicants desire to continue in the service to her country is noted, there are no provisions authorizing the change of an RE Code for this purpose.
4. 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
____X___ ___X____ ___X____ 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.
__________ _ X _______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20070016793
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ABCMR Record of Proceedings (cont) AR20080006518
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