IN THE CASE OF:	

		BOARD DATE:	27 August 2009  

		DOCKET NUMBER:  AR20090004980 


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 the Reenlistment Eligibility (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to something other than an RE code of "4." 

2.  The applicant states that he admitted to homosexual acts because he was afraid of going to jail for rape.  He explains that he and a few friends were on pass on a Saturday night prior to graduating from Advanced Individual Training. The group decided to get a hotel room to hang out and to get out of the barracks. The applicant maintains that at the suggestion of a female private, the group played drinking games and he fell asleep.  The next morning he found out that the female who suggested the drinking games had left.  He offers that on Sunday night he was interrogated by two U. S. Army Criminal Investigation Command officers for sexual assault based on the female private's allegations.  

3.  The applicant states that he and a male private were being interrogated simultaneously.  The male private said that he committed sexual acts with the applicant.  The applicant offers that after receiving counsel from his fellow privates, he admitted to committing homosexual acts with the male private in order to avoid being charged with rape and going to prison.  A week later he was informed that he was going to be put out the Army for admitting to homosexual acts.  The applicant adds that he confronted the commander to explain to him that he lied about the homosexual acts out of fear, but the commander refused to listen.  Out of frustration the applicant says he signed 20 to 30 pieces of paper without knowing what he signed.  
4.  The applicant provides a 3-page chronological synopsis of the events leading up to his separation, documents from his separation packet, an Official Transcript of GED Tests Results, a Certificate of Birth, an Honorable Discharge Certificate, a DD Form 214, and orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army (RA) on 
22 August 2007.  

2.  In a sworn statement, dated 7 April 2008, the applicant admitted to kissing and having sexual intercourse with a male Soldier.  The applicant signed the affidavit confirming that the information contained on the sworn statement was true.  He also confirmed that the statement was made freely without hope of benefit or reward, without threat of punishment, and without coercion, unlawful influence, or unlawful inducement.  The statement was witnessed by the first sergeant, another Soldier, and signed by the company commander.

3.  On 10 April 2008, the applicant's company commander initiated a Report to Suspend Favorable Personnel Actions against the applicant due to a pending elimination action.

4.  On 21 April 2008, the company commander counseled the applicant concerning the Army's homosexual policy and separation under chapter 15, Army Regulation 635-200.

5.  Memorandum, dated 22 April 2008, subject:  Commander's Inquisition Chapter 15 Investigation on the applicant, verified that the commander conducted an investigation of the applicant's homosexual acts.  After a review of the facts, the commander found that homosexual acts did occur as verified in a sworn statement from the other male private involved.  

6.  On 23 April 2008, the applicant's company commander notified the applicant that he was initiating action to separate him under the provisions of chapter 15, Army Regulation 635-200.  The commander cited the applicant's admission of engaging in homosexual activities with another male Soldier as justification for the separation action.  The company commander advised the applicant of his rights and recommended that he be separated with an honorable discharge.

7.  On 23 April 2008, the applicant acknowledged receipt of notification of the intended separation action.


8.  On 24 April 2008, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects, and of the rights available to him, he waived his right to have his case considered by an administrative separation board, to personally appear before an administrative separation board, and to counsel.  He also elected not to submit statements in his own behalf.

9.  On 25 April 2008, the applicant's company commander recommended that he be separated under the provisions of Army Regulation 635-200, chapter 15, prior to his expiration of term of service.  The commander recommended that the applicant receive an honorable discharge.  

10.  On 25 April 2008, the battalion commander approved the discharge and directed the issuance of an Honorable Discharge Certificate.

11.  The applicant’s DD Form 214 shows he was separated with an Honorable Discharge Certificate, on 29 April 2008, under the provisions of chapter 15-3b, Army Regulation 635-200.  The narrative reason for separation is listed as "Homosexual Conduct (Admission)."  Item 26 shows he was assigned a Separation Program Designator (SPD) code of "JRB" and item 27 shows his RE code as "4."  

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 is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the Soldier has demonstrated that he 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 Separation Program Designator (SPD) Code/RE Code Cross Reference Table states that when the SPD is JRB then an RE code of 4 will be given.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant argues that he admitted to homosexual acts to avoid imprisonment based on sexual assault charges lodged against him by a female Soldier.  However, he has failed to provide any evidence to substantiate his claim.  

3.  The evidence of record confirms the applicant's separation from the Army was based on him admitting that he performed homosexual acts in a sworn statement.  The commander investigated the applicant's sworn statement and confirmed that the homosexual acts did occur.  The applicant was discharged on 29 April 2008 under the provisions of Army Regulation 635-200, chapter 15.

4.  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.


5.  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 reason was appropriate considering all the facts of the case.

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)                                         AR20090004980



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ABCMR Record of Proceedings (cont)                                         AR20090004980



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