IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080014637 


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 her reentry eligibility (RE) code on her DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from RE-3 to RE-4 [sic].  The applicant's request is construed to mean she wants a change of RE code from RE-4 to RE-3.

2.  The applicant states that she is not a homosexual.  She comes from a very religious home.  Her father is a deacon at the First Church of the Nazarene and her mother works as the church secretary.  She was in youth groups from the age of 12 through 18.  She contends that some of her former friends sent letters to Fort Jackson, South Carolina, while she was in basic training saying she was a homosexual.  She was being harassed by the other Soldiers and felt her safety was in danger.  She made several attempts to speak with the first sergeant and unit commander about the harassment.  The unit commander eventually heard the rumors, and the applicant reported to the unit commander's office where the commander asked her if she was homosexual.  The applicant told the unit commander she was not homosexual; however, the unit commander called her uncle, who told the unit commander he was not sure if the applicant was homosexual.  The unit commander asked her if she understood the homosexual policy and the applicant indicated that she did not remember reading it.  The unit commander then told her she needed to write a sworn statement saying that she was a homosexual and planned on marrying a female.  She only wrote the statement because the commanding officer ordered her to do so.  She wants to reenlist because she is not homosexual.

3.  The applicant provides a copy of her DD Form 214.
CONSIDERATION OF EVIDENCE:

1.  On 4 May 2007, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 31 May 2007, she was discharged from the DEP and enlisted in the Regular Army for 3 years.

2.  On 26 June 2007, the unit commander published a memorandum of her inquiry into the applicant's suspected violation of the homosexual policy.  She indicated that on 18 June 2007 the acting first sergeant sent her a copy of a letter written by the applicant.  In the letter the applicant stated she was a homosexual and planned on marrying her girlfriend after basic training.  On 20 June 2007, she read the Army's homosexual policy to the applicant and the applicant indicated in writing that she would not abide by this policy.  The unit commander then gathered names and phone numbers of civilians affiliated with the applicant who would be able to confirm or deny her statements.  She made contact with the applicant's uncle who was uncertain about the applicant's intent to marry, but did verify that the applicant was a homosexual and had a pre-existing relationship with S_______ F_______.  The unit commander indicated that she did not have reason to believe the applicant was fabricating the information she provided, and she therefore recommended through the chain of command that the applicant be discharged.

3.  Attached to the inquiry memorandum was a 17 June 2007 letter signed by the applicant that stated, "I feel that I need to go home for one single reason:  I'm a homosexual.  I had planned on getting married to my girlfriend, of one year, after I returned home.  I understand that I should not disclose this information, but I've been having thoughts, feelings, and dreams that I shouldn't have.  However, I have not acted on those things.  Plus, in the book it says if you attempt to marry someone of the same sex and the Army/military finds out, you'll get kicked out anyway.  Well, my girlfriend had planned on moving with me wherever I went.  So they would've eventually found out.  Plus, she wouldn't get any benefits and that's one reason I joined.  I fully understand that I'm ruining a good career, but this is what I want."

4.  On 28 June 2007, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 15 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of homosexual conduct.  The unit commander advised the applicant that she was recommending she receive an uncharacterized discharge because she was in entry-level status.  She was advised that she had the right to consult with legal counsel, to obtain copies of documents that would be sent to the separation authority, and to request a hearing before an administrative separation board or to present written statements in her own behalf instead of board proceedings.
5.  After acknowledging receipt of the notification of discharge, the applicant voluntarily waived her right to consult with legal counsel, waived consideration of her case by an administrative separation board, and elected not to submit a statement in her own behalf.  She also indicated that she understood that she may encounter substantial prejudice in civilian life because of an uncharacterized discharge and that she may be ineligible for many benefits as a veteran under both Federal and State laws.  Finally, she acknowledged that she understood that she could make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading her discharge.

6.  In an 18 July 2007 sworn statement, the applicant indicated that she was a homosexual female.  She also stated that after enlisting in the military she had planned to keep her sexual orientation a private matter.  Before she joined the Army, the homosexual policy was never explained to her.  Only after the unit commander's briefing did she realize that she could not marry her girlfriend.  After the briefing, she gave her drill sergeant a note that went to the commander explaining that she could not abide by the policy.

7.  On 16 August 2007, the separation authority approved the applicant's discharge and directed that the applicant be discharged with an uncharacterized discharge. 

8.  On 22 August 2007, the applicant was discharged under the provisions of paragraph 15-13b, Army Regulation 635-200, by reason of homosexual conduct (admission).  She was credited with 2 months and 22 days of active military service.  Her DD Form 214 shows she was assigned a Separation Designator Code (SPD) of "JRB" and an RE code of "4."

9.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation states that active homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who actively engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.  A Soldier who is in entry-level status will be issued an uncharacterized discharge.  A Soldier is in entry-level status for the first 180 days of continuous active duty.

10.  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 (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.  RE 1 and 2 permit immediate reenlistment if all other criteria are met. RE 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.

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

12.  A separation code of "JRB" applies to persons who are separated under the provisions of chapter 15, Army Regulation 635-200, for homosexual conduct (admission).  The SPD/RE Code Cross Reference Table shows that an RE code of "4" is the applicable RE code assigned for individuals separated with an SPD code of "JRB."

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contentions, it appears that on 20 June 2007 the unit commander initiated an inquiry into the applicant's violation of the Army's homosexual policy based on a letter the applicant wrote on 17 June 2007 indicating that she was a homosexual and planned on marrying her girlfriend after returning home.  She also indicated in this letter that she was aware that she would be kicked out of the Army if the Army found out she was homosexual. As such, her contention that she was unaware of the Army's homosexual policy is without merit.  Further, her contention that the issue was initiated by some former civilian friends is without merit.  The evidence shows she initiated the process of her discharge by providing a written letter about her sexual orientation and her future plans.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize her rights.  She was advised that she was entitled to an administrative separation board to present evidence in her own behalf and she waived that right.  An RE code is based on an individual's reason for discharge and cannot be changed unless the narrative reason for discharge is changed.  In this case, the applicant's narrative reason for discharge is fully supported in the official record and there is no basis upon which to grant a change.  As such, the applicant's RE code was appropriately assigned in accordance with the regulatory guidance above.

3.  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.

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)                                         AR20080014637



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ABCMR Record of Proceedings (cont)                                         AR20080014637



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