IN THE CASE OF:	

		BOARD DATE:	  25 November 2008

		DOCKET NUMBER:  AR20080011773 


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 that the reentry eligibility (RE) code 4 on her DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 21 May 2007 be changed to an RE code that would allow her to be eligible to reenter the U.S. Army.  

2.  The applicant states, in effect, that she is not a homosexual and never committed any sexual acts with fellow Soldiers.  She passed all her duty requirements and completed advanced individual training.  She states that Soldiers in her unit could not accept her short style, close-to-the-skin haircut.  She was harassed and called names constantly.  She states that she informed a drill sergeant of her situation and she was told that she would report it.  The applicant states that she wanted to stay in the Army but that was not an option.

3.  The applicant provides three letters of support from fellow associates in support of her application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 November 2006.  She did not successfully complete advanced individual training.  

2.  A DA Form 2823 (Sworn Statement), dated 12 April 2007, indicates that the applicant admitted that she was currently in a homosexual relationship and that she had engaged in homosexual acts. 

3.  On 20 April 2007, action was initiated to separate the applicant under the provisions of Army Regulation 635-200, chapter 15 for homosexuality.

4.  On 8 May 2007, the applicant completed a mental status evaluation.  No evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through medical channels was found.  She was found to be mentally responsible for her behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate intelligently in any proceedings which could involve her.  She was psychiatrically cleared for any administrative action deemed appropriate.

5.  On 10 May 2007, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  She waived her right to consideration of her case by an administrative separation board.  She elected not to submit a statement in her own behalf.

6.  On 13 May 2007, the appropriate authority approved the recommendation to separate the applicant.  On 21 May 2007, the applicant was honorably discharged after completing 6 months and 2 days of creditable active service.

7.  The applicant's DD Form 214 with the period ending 21 May 2007 shows she was discharged under the provisions of paragraph 15-3b, Army Regulation
635-200, for "HOMOSEXUAL CONDUCT (ADMISSION)"; item 27 (Reentry Code) shows the entry "4"; and item 26 (Separation Code) shows a separation code of "JRB."

8.  Army Regulation 635-200, chapter 15, prescribes the current criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  When the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is otherwise warranted and if there is a finding that during the current term of service 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; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order or morale due to the close proximity of other Soldiers of the Armed Forces.  In all other cases, the type of discharge will reflect the character of the Soldier’s service.  



9.  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 Regular Army (RA) and the U.S. 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.

10.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.  

11.  The Separation Program Designator Code (SPD)/Reentry (RE) Code   Cross-Reference Table states that when the separation code is JRB then RE code 4 will be given.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she needs her RE code changed on her DD Form 214 in order to reenter military service.  However, the Board does not change RE codes solely to allow former Soldiers to reenter military service.  

2.  Evidence of record shows that the applicant was separated from the service for homosexual conduct (admission) under the provisions of Army Regulation 635-200, chapter 15-3b.  She signed a sworn statement admitting she was involved in a homosexual relationship.  By regulation, this mandated that she be assigned an RE code 4 upon her separation from the Army.

3.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE code 4 code assignment.  Lacking independent evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the assigned RE code 4 was appropriate.

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.



      _________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)                                         AR20080011773



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ABCMR Record of Proceedings (cont)                                         AR20080011773



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