IN THE CASE OF:	

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20080019671 


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 eligibility (RE) code be changed from RE code 4 to RE code 3.

2.  The applicant states, in effect, that he was looking for a way out of the military before being approached about his sexual orientation.  On 12 December 2007, he was asked about his sexual orientation and he replied that he was bisexual, of which he is not, he is heterosexual.  The documents that stated that he was bisexual were a scam that he created.  The military has always been a dream of his and he made the wrong decision to end it.

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he enlisted in the United States Army Reserve in pay grade E-1 on 15 February 2006.  He enlisted in the Regular Army (RA) in pay grade E-2 on 4 January 2007.

2.  In a memorandum, dated 12 December 2007, the applicant requested separation from the military under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 15.  He stated that he was advising his commanders of the discovery that he was a homosexual.  He also stated, in effect, that he sincerely desired to fulfill his enlistment, but could not at the expense of being required to lie to his friends and commanders.  He further states that he was giving his statement of sexual orientation and did not wish to rebut the presumption created under current Department of Defense and Department of the Army regulations.  He requested that his discharge be handled in a confidential and timely manner, restricted to those whose input was essential to its processing.

3.  On 12 December 2007, the applicant received counseling concerning his claim of being a bisexual, the Army's homosexual policy, and possible separation under chapter 15.

4.  On 12 December 2007, the applicant's company commander initiated a Report to Suspend Favorable Personnel Actions against him for adverse action.

5.  A Report of Mental Status Evaluation, dated 13 December 2007, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The evaluating psychiatrist, a doctor of medicine, found him to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  The evaluating psychiatrist stated that the service member was seen and evaluated as required for chapter 15 separation.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

6.  On 28 December 2007, the applicant's company commander notified him that he was initiating action to separate him because of his propensity to engage in sexual activity with members of the same sex.  The company commander advised the applicant of his rights and recommended he be separated with an honorable discharge.

7.  On 28 December 2007, the applicant acknowledged receipt of notification of the intended separation action.

8.  On 28 December 2007, the applicant's company commander recommended his separation under the provisions of Army Regulation 635-200, chapter 15, prior to his expiration of term of service.  He recommended the applicant receive an honorable discharge.  On the same day, the battalion commander concurred with the company commander's recommendation in the separation action.  He recommended the applicant receive an honorable discharge.

9.  On 3 January 2008, the appropriate separation authority approved the discharge and directed the issuance of an Honorable Discharge Certificate.
10.  The applicant was honorably separated from active duty in pay grade E-2 on 9 January 2008 under the provisions of Army Regulation 635-200, chapter 15, paragraph 15-3b, for homosexual conduct (admission).

11.  Item 26 (Separation Code) of the applicant's DD Form 214 shows the entry "JRB" and item 27 (RE Code) shows the entry "RE-4."  (Item 12a (Date Entered AD [Active Duty] This Period) shows he entered active duty on 23 February 2006 instead of 4 January 2007.)

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15, paragraph 15-3b, states that homosexual conduct is grounds for separation from the Army.  A Soldier will be discharged when the Soldier has made a statement that he/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.

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Reserve.  The regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE codes.  Chapter 3-10, also provides that RE codes could be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE codes will be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.

14.  An RE code of 4 applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE code of 4 are ineligible for enlistment.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation shows that the SPD of JRB as shown on the applicant’s DD Form 214 is appropriate for voluntary discharge when the narrative reason for discharge is a homosexual admission and the authority for discharge is Army Regulation 635-200, chapter 15, paragraph 15-3b.
16.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows SPD codes with their corresponding RE codes.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of JRB has a corresponding RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change of his RE code 4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error or inequity to justify the relief he now seeks.

2.  The applicant's contentions were carefully considered and found not to have merit.  The evidence of record confirmed the applicant requested separation from the Army based on his discovery that he was a homosexual.  He requested that his discharge be handled in a confidential and timely manner.  He was discharged on 9 January 2008 under the provisions of Army Regulation 635-200, chapter 15.

3.  The evidence also shows he was assigned an RE code of 4.  His assigned RE code is consistent with the reason for separation.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that his assigned RE code is in error or unjust.  Therefore, he has established no basis for changing his existing RE code.

4.  The evidence of record also confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  A review of the applicant's DD Form 214 for the period ending 9 January 2008 revealed that during the preparation of his DD Form 214 an administrative error did occur.  Item 12a shows he entered active duty on 23 February 2006 instead of 4 January 2007.  In view of the fact that the applicant did not specifically request a correction to item 12a of his DD Form 214, this error will not be corrected at this time.  He may reapply to the Board if he desires to change item 12a.

6.  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)                                         AR20080019671



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ABCMR Record of Proceedings (cont)                                         AR20080019671



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