IN THE CASE OF:	

		BOARD DATE:	10 September 2009  

		DOCKET NUMBER:  AR20090006488 


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 correction of appropriate military records to show a reentry eligibility (RE) code which would allow enlistment.

2.  The applicant states in her application and in a letter addressed to Senator Burr that she was immature and was chaptered out of the Army because she admitted to homosexuality/bisexuality.  She states that she has matured personally and professionally, and her goal is to enlist in the Army.  

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of her request.

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 military records show she enlisted in the Regular Army on 3 June 1992.  She was awarded the military occupational specialty of power generation equipment repairer and was promoted to pay grade E-2.

3.  On 16 March 1993, the applicant made a written statement that she recently discovered she was homosexual and she had not committed any homosexual acts.  She stated she was requesting to be discharged from the U.S. Army under chapter 15, paragraph 4.

4.  On 18 March 1993, the applicant underwent a mental status evaluation.  She was found to have the mental capacity to understand and participate in proceedings and to be psychiatrically cleared for any administrative action deemed appropriate by her command.

5.  On 24 March 1993, the applicant completed a separation medical examination and was found to be qualified for separation.

6.  On 5 April 1993, the applicant's commander notified her that he was recommending she be separated from the Army under the provisions of Army Regulation 635-200, chapter 15 for homosexuality based on her voluntary statement requesting a discharge due to her recent discovery of homosexuality.  He stated he was recommending an honorable discharge.  He advised her of her right to consult with an attorney and to submit a statement on her own behalf.
  
7.  On 6 April 1993, the applicant was advised by consulting counsel of the basis for the contemplated action to separate her for homosexuality under Army Regulation 635-200, chapter 15, and its effects; of the rights available to her; and the effect of any action taken by her in waiving her rights.  She waived consideration of her case by an administrative separation board and elected not to make a statement in her own behalf.

8.  On 6 April 1993, the applicant's commander recommended her for separation under the provisions of Army Regulation 635-200, chapter 15 for homosexuality.  He cited the applicant's voluntary statement requesting discharge based on recent discovery of homosexuality.

9.  On 12 April 1993, the appropriate authority approved the recommendation and directed the applicant receive an Honorable Discharge Certificate.

10.  On 20 April 1993, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 15-3b for admission of homosexuality/bisexuality.  
She was given a separation program designator code (SPD) of JRB and an RE code of 4.  She had completed 10 months and 18 days of creditable active service. 

11.  Army Regulation 635-5-1 (SPD Codes), Table 2-3, states that the SPD code JRB denotes admission of homosexuality/bisexuality.

12.  The Army Human Resources Command publishes a cross-reference list of SPD and RE codes.  The cross-reference list in effect at the time showed that an SPD code of JRB was assigned an RE code of 4.

13.  Army Regulation 635-200, chapter 15, in effect at the time prescribed the criteria and procedures for the investigation of homosexual personnel and their discharge from the Army.  It stated that homosexuality is incompatible with military service.  It further stated that the basis for separation may include preservice, prior service, or current service conduct or statements.  It stated that a Soldier may be separated per this chapter if the Soldier has stated he or she is a homosexual or bisexual, unless there is a further finding that the Soldier is not a homosexual or bisexual. 

14.  Pertinent Army regulations provide 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.  Army Regulation 601-210 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 basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Regular Army RE codes.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.  

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit evidence that would satisfy this requirement.

2.  In view of the fact the applicant admitted in a signed written statement that she had recently discovered she was a homosexual, the assigned RE of 4 was properly given.  

3.  While it is commendable that the applicant has matured, that is not a basis to change a properly-assigned RE code.
4.  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)                                         AR20090006488



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ABCMR Record of Proceedings (cont)                                         AR20090006488



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