DOCKET NUMBER:  AR20080020070 


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 be changed from RE-4 to RE-3 to allow him to reenlist in the Army National Guard (ARNG).

2.  The applicant states, in effect, that he was advised that it would be hard to reenlist, but possible.  He also states, in effect, that by enrolling in school and getting married he has put himself in a better position.

3.  In support of his application, the applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), his St. Petersburg College Self Service Study List, and his Marriage Record.   

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Florida ARNG (FLARNG), in pay grade E-1, on 11 January 2007, for 8 years.  He was ordered to active duty for training (ADT) entered on active duty on 27 March 2007. 

2.  In a memorandum, dated 16 July 2007, the applicant, through counsel, notified his command that he had a propensity to engage in homosexual acts.  The memorandum was noted as fulfilling the requirement of Army Regulation 635-200 and it was intended to be a statement by the applicant.  

3.  On 16 July 2007, the applicant's company commander initiated a Report to Suspend Favorable Personnel Actions against the applicant for elimination.

4.  On 26 July 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 uncharacterized characterization of service. 

5.  On 4 August 2007, after consulting with counsel, the applicant acknowledged receipt of notification of the intended separation action.  He waived his rights and elected to submit a statement in his own behalf.  In the statement, the applicant stated that he had been having those feeling for years and about the fourth week of training he knew that he was a homosexual.  In advanced individual training he realized that he could not hide those feelings and you could not be openly homosexual in the US Army.

6.  On 6 August 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.  On the same day, the battalion commander concurred with the company commander's recommendation in the separation action.  He recommended the applicant's service be characterized as uncharacterized.  

7.  On 9 August 2007, the appropriate separation authority approved the discharge and directed the applicant's service be characterized as uncharacterized.  

8.  The applicant was released from ADT and discharged from the Reserve of the Army, in pay grade E-1, on 13 August 2007, under the provisions of Army Regulation 635-200, Chapter 15, paragraph 15-3b, for homosexual conduct (admission) and returned to the ARNG.  He was credited with 4 months and 17 days net active service and his character of service was uncharacterized.  

9.  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."

10.  The applicant was discharged from the FLARNG, in pay grade E-1, on 13 August 2007, under the provisions of National Guard Regulation 600-200, 8-35g, for homosexual conduct.  He was credited with 7 months and 3 days net service and his character of service was uncharacterized.  

11.  Item 26 (Reenlistment Eligibility) of the applicant's NGB Form 22 (Report of Separation and Record of Service) shows the entry "RE-4."

12.  The applicant submits copies of his St. Petersburg College Self Service Study List, for the Spring Term 2008-2009, showing three courses he had enrolled in.  He also submits a copy of his Marriage Record that showed he was married on 23 December 2007.   

13.  Army Regulation 635-200 (Enlisted Separations) 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.

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (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.  

15.  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.  

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), prescribed 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.

17.  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 code.  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.”

18.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-35g, specifies that the homosexual conduct discharges are applicable for administrative separation or discharge with an RE-4, from the Reserve of the Army, the State ARNG only, or both.  Paragraph 8-34 of this regulation specifies, in pertinent part, that an RE-4 is assigned when a Soldier is ineligible for enlistment.

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 admitted to being a homosexual because of his propensity to engage in sexual activity with members of the same sex.  He agreed to be separated from the Army under the provisions of Army Regulation 635-200, Chapter 15, paragraph 15-3b.  He was released from active duty and discharged from the Reserve of the Army on 13 August 2007.  He was also discharged from the FLARNG on 13 August 2007.  

3.  The evidence also shows he was assigned an RE Code of "4."  His assigned RE Code is consistent with the reasons for his 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 release from active duty 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.  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)                                         AR20080020070





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ABCMR Record of Proceedings (cont)                                         AR20080020070



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