IN THE CASE OF:	  

		BOARD DATE:	  	  20 November 2008

		DOCKET NUMBER:  AR20080014176 


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, correction of the separation and reentry (RE) eligibility codes that are shown on his discharge document.

2.  The applicant states, in effect, at the time of his discharge he was 19 years old, little more than a scared kid who was unsure of what he wanted, so he told an untruth about his sexual orientation.  He also states he is now older and wiser, has plans to be married in the near future, and a strong sense of honor and desire to continue his family’s tradition of military service among its males.  He further states that the separation and reentry eligibility codes on his discharge document are unjust because they speak an untruth about him and prevent him from carrying out his duty to this country and his family.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 21 December 1999.

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 records show that he enlisted in the U.S. Army Reserve on 18 October 1999 and entered active duty in the Regular Army for a period of 5 years on 9 November 1999.  The applicant’s records show his date of birth is 29 December 1979 and at the time of his entry on active duty he was 19 years of age.

3.  The applicant's military service records contain a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 2 December 1999, and DA Form 2823 (Sworn Statement), dated 2 December 1999.  The DA Form 3881 shows, in pertinent part, that the applicant was advised of his rights and indicated he was willing to discuss the offenses under investigation with his company commander and first sergeant.  The DA Form 2823 shows, in pertinent part, the applicant was questioned about homosexual and bi-sexual behavior, his understanding and participation in such conduct, and his intent to engage in homosexual or bi-sexual conduct.  This document also shows the applicant acknowledged he did not want to be in the Army and indicated that he initially informed his drill sergeant and first sergeant that he had homosexual/bi-sexual ideations/tendencies on or about 24 or 25 November 1999.  This document further shows the applicant placed his signature on the document attesting to the contents and truthfulness of the statements he made on 2 December 1999.  The document was also signed by the applicant’s company commander and first sergeant.

4.  On 7 December 1999, the Commander, Company A, 795th Military Police Battalion, Fort Leonard Wood, Missouri, initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 15, based on bi-sexual conduct.  The commander's reasons for the proposed action were that the applicant admitted to being bi-sexual and had the intent to engage in bi-sexual activities while in the Army.  The commander added that the applicant’s continued presence in the military would impair unit morale, discipline, and good order and that further training of the applicant was not warranted.  The commander advised the applicant that she was recommending the applicant receive an entry-level separation with an uncharacterized character of service and advised him of his rights.  The applicant was informed that his statement admitting that he is a homosexual creates a rebuttal presumption that he engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual actions, and that the applicant had the burden of rebutting this presumption.

5.  The applicant's military service records contain a USA MEDDAC Form 856 (Report of Mental Status Evaluation), dated 7 December 1999.  This document shows that the medical doctor serving as Chief, Inpatient Psychology, Behavior Medicine Division, Fort Leonard Wood, found the applicant fully alert and oriented, his mood unremarkable, thinking process clear, thought content normal, and memory good.  The Inpatient Psychology Chief also indicated the applicant "stated that he understands what a chapter 15 entails."  The applicant was cleared for any administrative action deemed appropriate by command.

6.  On 7 December 1999, the applicant acknowledged with his initials and signature that he had been advised of the basis for the contemplated action to separate him for bi-sexual conduct under Army Regulation 635-200, chapter 15, and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  The applicant indicated that he declined the opportunity to consult with appointed counsel, military counsel of his own choice, or civilian counsel at his expense; waived consideration of his case by an administrative board; waived personal appearance before an administrative separation board; elected not to submit statements in his own behalf; and waived representation by military or civilian counsel.

7.  On 7 December 1999, the Commander, Company A, 795th Military Police Battalion, recommended the applicant’s separation under the provisions of Army Regulation 635-200, chapter 15 (Homosexual Conduct) based upon characteristics not compatible with military lifestyle.

8.  On an unspecified date, the Commander, 795th Military Police Battalion, 14th Military Police Brigade, recommended approval of the applicant’s discharge from the U.S. Army under the provisions of Army Regulation 635-200, chapter 15.

9.  On an unspecified date, the Commander, 14th Military Police Brigade, approved the applicant’s discharge from the U.S. Army under the provisions of Army Regulation 635-200, chapter 15.  The commander directed the applicant’s discharge be under uncharacterized conditions and that he receive an entry-level discharge.

10.  The applicant's DD Form 214 shows he was discharged on 21 December 1999 under the provisions of Army Regulation 635-200, paragraph 15-3b, based on homosexual admission.  At the time of his discharge the applicant had completed 1 month and 13 days of net active service during this period.  This document also shows the applicant’s character of service as "uncharacterized"; he was issued Separation Code "JRB" in item 26 and Reentry Code "4" in item 27.
11.  There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 3, paragraph 3-4, provides that the following types of characterization of service or description of separation are authorized:  (1) separation with characterization of service as honorable, general (under honorable conditions), or under other than honorable conditions; (2) entry level status (service will be uncharacterized), except as provided in paragraph 
3-9a; (3) order of release from the custody and control of the Army by reason of void enlistment or induction; and (4) separation by being dropped from the rolls of the Army.  The types of separation will be used in appropriate circumstances unless limited by the reason for separation.

13.  Army Regulation 635-200, paragraph 3-7, provides, in pertinent part, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  This paragraph also provides that only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless an entry level status separation (uncharacterized) is warranted.

14.  Army Regulation 635-200, paragraph 3-9, provides, in pertinent part, that a separation will be described as an entry-level separation with service uncharacterized if processing is initiated while a Soldier is in entry-level status.  This document also provides that entry-level status terminates 180 days after initial entry on active duty.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) 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.  It identifies the SPD code of "JRB" as the appropriate code to assign Regular Army enlisted Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 15-3b, for homosexual admission.  The SPD/RE Code Cross Reference Table provides for the assignment of RE code "4" to members separated with this SPD code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the separation and reentry codes that are shown on his discharge document should be corrected because he was a young and scared kid who was unsure of what he wanted.  He told an untruth about his sexual orientation and the separation and reentry codes on his discharge are unjust because they do not reflect the truth about him and also prevent him from carrying out his duty to this country and his family.

2.  Records show the applicant was 19 years of age when he first admitted to his first sergeant that he had homosexual/bi-sexual ideations/tendencies, and nearly 20 years of age when he was notified by his company commander of the action to separate him under the provisions of Army Regulation 635-200, chapter 15, based on bi-sexual conduct.  The evidence of record also shows that the Chief, Inpatient Psychology, found the applicant’s thinking process clear at the time of his separation process.  In this regard, there is no evidence that indicates the applicant was any less mature or uncertain than other Soldiers of the same age who successfully completed their military service during this period.

3.  The evidence of record shows that the applicant voluntarily completed a
sworn statement on 2 December 1999 in which he acknowledged his homosexual and bi-sexual ideations/tendencies and he placed his signature on the document attesting to the contents and truthfulness of the statement (emphasis added).  There is no evidence that the answers given by the applicant in the sworn statement were untrue and the applicant provides insufficient evidence to show that his sworn statement was untrue.

4.  The evidence of record shows that the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 15, paragraph 15-3b, for homosexual admission was administratively correct and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence of record shows the SPD code "JRB" and RE code "4" that the applicant received were appropriately assigned based on the authority and reason for his discharge.  Thus, the SPD code "JRB" and RE code "4" assigned at the time of the applicant's discharge were, and remain, valid.  Therefore, there is no basis to change the applicant’s SPD code and/or RE code.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080014176



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ABCMR Record of Proceedings (cont)                                         AR20080014176



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