IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090001124 


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, a change to the reason for his discharge and to his reentry eligibility (RE) code.

2.  The applicant states, in effect, he was falsely accused of being a homosexual by another Soldier.  He claims collective action was taken against him to affect his discharge and that it is time to look at the quality of his entire 8 years of service and resolve this matter.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and the Army Discharge Review Board (ADRB) Case Report and Directive completed on him in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 20 September 2000.  He was trained in and awarded military occupational specialty 88N (Traffic Management Coordinator).  He was promoted to the rank of specialist (SPC) on 1 May 2003 and this was the highest rank he attained while serving on active duty.

2.  The applicant's record shows that during his active duty tenure he earned the National Defense Service Medal, Korea Defense Service Medal, Army Service Ribbon, and Overseas Service Ribbon.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

3.  On 25 July 2005, the unit commander notified the applicant of his intent to initiate action to separate the applicant under the provisions of chapter 15, Army Regulation 635-200 (Personnel Separations), by reason of homosexual conduct. 
The unit commander cited the applicant's engagement in homosexual acts with another male Soldier as the basis for taking the action.  The unit commander recommended the applicant receive a general, under honorable conditions discharge.

4.  On 25 July 2005, the applicant consulted with legal counsel and was advised of the basis of the contemplated separation action and its effects, the rights available to him, and the effect of any action he took to waive those rights.  Subsequent to receiving this legal counsel, the applicant completed a conditional waiver of his rights, which included his voluntary waiver of his right to have his case considered by an administrative separation board, contingent on receiving not less than an honorable discharge (HD).  The applicant elected not to submit a statement in his own behalf and confirmed that he was making the conditional waiver request of his own free will and had not been subjected to any coercion whatsoever by any person.

5.  On 26 July 2005, the separation authority approved the applicant's separation under the provisions of chapter 15, Army Regulation 635-200, by reason of homosexual conduct and directed the applicant receive an HD.  On 28 July 2005, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he held the rank of SPC and had completed a total of 4 years, 10 months, and 9 days of active military service at the time of his discharge.  It further confirms that based on the authority and reason for his discharge, he was assigned a separation program designator (SPD) code of JRA and an RE code of 4.

6.  On 11 June 2008, the ADRB, after carefully examining the applicant's record of service and the issues presented by the applicant, determined the applicant's discharge was proper and equitable and voted not to change the reason for his discharge.

7.  Army Regulation 635-200 sets forth the policy for the administrative separation of enlisted personnel.  Chapter 15 contains the policy for discharging members for homosexual conduct, which includes homosexual acts, statements that demonstrate a propensity or intent to engage in homosexual acts, or homosexual marriage or attempted marriage.  The criteria for discharge under these provisions include a Soldier engaging in, attempting to engage in, or solicit another person to engage in, a homosexual act or acts.

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.  RE-4 applies to persons who have a nonwaivable disqualification.

9.  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.  It states, in pertinent part, that the SPD code JRA is the appropriate code to assign to Soldiers separated under the provisions of chapter 15, Army Regulation 635-200, by reason of homosexual conduct.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JRA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the reason for his discharge was unjust has been considered was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation, which includes the assignment of SPD code JRA and RE code 4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record further confirms that the applicant completed a conditional waiver of his rights contingent on receiving an HD and that he was discharged under the terms of this voluntary conditional waiver.  It also shows that the applicant waived his right to have his case considered by an administrative separation board and elected not to submit a statement in his own behalf.  Therefore, it is clear the applicant took no action to contest the basis for his discharge during his separation processing.

4.  Absent any evidence of record or independent evidence provided by the applicant showing any error or injustice related to his discharge processing, there is an insufficient evidentiary basis to support a change to the reason for his discharge.

5.  Further, although not requested by the applicant, given an RE code change was included in his ADRB application, this issue was also carefully considered during this process.  However, the evidence of record confirms the RE-4 code he was assigned at discharge was and remains valid based on the authority and reason for his discharge.  Therefore, it would also not be appropriate to change his RE code at this time.

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 and his counsel have 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)                                         AR20090001124



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ABCMR Record of Proceedings (cont)                                         AR20090001124



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