IN THE CASE OF:	  

	BOARD DATE:	  22 JULY 2008

	DOCKET NUMBER:  AR20080006930 


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 his reentry (RE) code shown in Item 27 (Reentry Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from a “4” to an RE code that will make him eligible for enlistment into the military.

2.  The applicant essentially states that he was discharged for a homosexual admission, which he made in  a state of deep confusion, which has long since passed.  He also states that he is not a homosexual, and that he is decidedly a heterosexual, and wishes to serve his country again as a Soldier.

3.  The applicant provides his DD Form 214 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 records show that he enlisted in the Regular Army on 24 January 1997.  He completed basic and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer), then was reassigned to Fort Drum, New York for what would be his first and only permanent duty assignment.

3.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, his military records do contain a properly constituted DD Form 214.  This DD Form 214 shows that the applicant was honorably discharged on 30 January 1998 under the provisions of Army Regulation 635-200, Paragraph 15-3b, due to homosexual admission.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry “Homosexual Admission.”  His DD Form 214 also shows that he was assigned a Separation Program Designator (SPD) code of “JRB,” and an 
RE code of “4.”

4.  The applicant essentially stated that he was discharged for a homosexual admission, which he made in  a state of deep confusion, which has long since passed.  He also stated that he is not a homosexual, and that he is decidedly a heterosexual, and wishes to serve his country again as a Soldier.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 15-3b of that regulation provides that a Soldier will be discharged if he or she made a statement that he or 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. 

6.  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 United States 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.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

7.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

8.  An SPD code of "JRB" applies to persons discharged for homosexual conduction or admission under the provisions of Chapter 15, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals discharged for homosexual conduct or admission.  The applicant’s RE code of 4 indicates that the he was separated from his last period of service with a disqualification which cannot be waived and is ineligible for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code shown in Item 27 of his DD Form 214 should be changed from a “4” to an RE code that will make him eligible for enlistment into the military.

2.  The fact that the applicant now contends that the statement he made about being a homosexual was made in a state of deep confusion was noted, as was his statement that he is decidedly a heterosexual.  The fact that the applicant now wishes to serve his country again as a Soldier is noteworthy; however, the applicant's contentions do not change the reason why he was discharged.

3.  Although the facts and circumstances pertaining to the applicant’s discharge are not available, it is clear that the applicant admitted in a statement that he was a homosexual, and that he was discharged under the provisions of Army Regulation 635-200, Paragraph 15-3b because of his homosexual admission.  The applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process.

4.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on his homosexual admission and there was no basis upon which to change this reason.  

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 did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.


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
      
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)                                         AR20080006930



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ABCMR Record of Proceedings (cont)                                         AR20080006930



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