IN THE CASE OF:	

		BOARD DATE:	16 July 2009    

		DOCKET NUMBER:  AR20090004321 


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.

2.  The applicant states, in effect, he would like an upgrade of his RE Code to get back in the military.  He states the reason for his discharge was false and that it was not looked into.

3.  The applicant provides no additional documentary evidence in support of this application.

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 record shows that he enlisted in the Florida Army National Guard (FLARNG) and as a Reserve of the United States on 13 January 2004.  He was ordered to active duty for training on 10 February 2004 and successfully completed basic combat training and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  The applicant was released from active duty for training and he was returned to his FLARNG unit on 4 June 2004.

3.  The evidence shows the applicant was promoted to the rank and pay grade of Specialist, E-4, on 20 March 2005.  This was the highest rank the applicant attained during his service.

4.  The applicant was ordered to active duty in support of Operation Enduring Freedom on 25 March 2005.  The applicant served in Afghanistan from 12 July 2005 to 6 November 2005.

5.  The documents related to the applicant's discharge are not in the applicant’s Official Military Personnel File (OMPF) in the Integrated Personnel Electronic Records Management System (iPERMs); however, a completed DD Form 214 (Certificate of Release or Discharge from Active Duty) is available.

6.  The applicant's DD Form 214 shows that he was honorably released from active duty pursuant to the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 15-3B, for homosexual admission.  The applicant's DD Form 214 shows in Item 18 (Remarks) that he had time lost during the period covered by the DD Form 214 as follows:  from 17 November through 20 November 2005, from 29 November through 11 December 2005, from 14 December through 15 December 2005 and from 20 December through 21 December 2005.  Item 26 (Separation Code) of the applicant's DD Form 214 shows the entry "JRB."  Item 27 (Reentry Code) of the applicant’s DD Form 214 shows the entry "NA" and the Narrative Reason for Separation (Item 28) is "Homosexual (Admission)."

7.  The applicant was honorably discharged from the FLARNG and from the Reserve of the Army on 22 December 2005 pursuant to the provisions of National Guard Regulation 600-200, paragraph 8-26h, for homosexuality.  Item 26 (Reenlistment Eligibility) of the applicant's NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) was coded with an RE Code of "4."



8.  On 12 September 2006, the FLARNG, Office of the Adjutant General, Saint Augustine, Florida, published Orders 255-032 discharging the applicant from the Army National Guard and as a Reserve of the Army with an effective date of 22 December 2005.  The text of the applicant's orders contained a statement that "service member (SM) discharged from Camp Shelby--DD Form 214 received 20060627-not processed until receipt of orders to confirm narrative reason/ effective date."

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 contains the policy and procedures for the separation of enlisted personnel who have made a statement that they are a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the individual 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.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation code to be used for these stated reasons on the DD Form 214.  The regulation shows the separation code of "JRB," as shown on the applicant's DD Form 214, is appropriate for discharge when the narrative reason for discharge is "Homosexual (Admission)."  The authority for discharge under this separation code is Army Regulation 635-200, paragraph 15-3b.

11.  Pertinent Army regulations provide that prior to discharge or release from active duty, Soldiers will be assigned reentry codes, based on their service records or the reason for discharge.  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 and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces reentry codes, including RA RE codes.

12.  RE Code 4 applies to individuals not qualified for continued service due to being separated from the service with non-waivable disqualifications such as, as an example, a person with a HQDA or a local bar to reenlistment.

13.  RE Code 3 applies to persons not fully qualified for continued Army service and personnel who are discharged, but the disqualification is waivable.


14.  RE Code 1 applies to persons completing their term of service and who are considered fully qualified to reenter the Army.

15.  The SPD/RE Code Cross Reference Table, dated 8 September 2005, provides instructions for determining the RE Code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD Code with a corresponding RE Code and states that more than one RE Code could apply.  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.  The applicant's contention that his RE Code should be changed so he will be eligible to reenter the Army was carefully considered.

2.  The "packet" related to the applicant's discharge from the service is not in the applicant's OMPF in the iPERMs; however, from the available evidence it appears the applicant admitted to homosexuality and it was this admission that caused his discharge from the service before the expiration of his term of service.  In the absence of evidence to the contrary, Government regularity must be presumed insofar as the reason for his discharge and the discharge process is concerned.

3.  It appears that an error was made at the time the applicant's DD Form 214 was being prepared.  A numerical RE Code was not entered on the applicant's DD Form 214 in the appropriate item number, Item 27.  An entry of "NA" was made in this space.

4.  The Board has a policy that it will not make a correction to an applicant's record if the applicant will be left worse off than before they came to the Board for correction of their record.  However, in this case, since the applicant specifically requested correction of his RE Code, he will be left no worse off by the Board approving a correction and entering the RE Code that would have been applied to his DD Form 214 at the time of discharge.  Therefore, the entry, "NA," will be corrected to show an RE Code of "4" in Item 27 of the applicant's DD Form 214.

5.  When the applicant was discharged from the National Guard and from the Reserve of the Army on 22 December 2005, a correct RE Code of "4" was entered in Item 26 of the applicant's NGB Form 22.  Therefore, correction of the applicant's DD Form 214 will leave him no worse off than when he came to the Board.
6.  In view of the foregoing, there is no basis for granting the applicant's request to change his RE Code on his separation documents to an RE Code that will enable him to enlist again.  The applicant is, however, entitled to a correction to his RE Code on his DD Form 214 to reflect the RE Code that should have been entered on this form on the date he was discharged.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  __X______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that Item 27 of the applicant's DD Form 214 be corrected by deleting the entry in item 27 and replacing it with the RE Code of "4."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a change to the applicant's RE Code that will enable him to enlist again.




      _______ _   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)                                         AR20090004321



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ABCMR Record of Proceedings (cont)                                         AR20090004321



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