IN THE CASE OF:	  

		BOARD DATE:	         9 September 2009

		DOCKET NUMBER:  AR20090007178 


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, an upgrade of his reentry (RE) code from RE-4 to RE-3.  

2.  The applicant states, in effect, he is a divorced man and has a new life with two beautiful children.  He also states that he would like to serve his country again and provide for fiancé and children.  He concludes that he is not gay.

3.  The applicant submitted a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his divorce decree, and two copies of birth certificates 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 enlisted in the Regular Army, on 30 April 1996, for a period of 3 years.  

3.  On 1 July 1998, the applicant accepted nonjudicial punishment (NJP) for failure to go to his appointed place of duty on 17 June 1998.  His imposed punishment was 14 days additional duty.

4.  The applicant's record also shows he was given ten general counseling statements during the period 10 October 1996 through 1 July 1998, for various reasons including his initial counseling, failure to report, admitted use of illegal drugs, and repeated failure of the Army Physical Fitness Test.

5.  The applicant's record contains a Sworn Statement, dated 8 July 1998, which shows the applicant divulged to his platoon sergeant that he was being blackmailed by his former homosexual friend and that he had been participating in homosexual acts for the last 2 or 3 months. 

6.  On 24 August 1998, the applicant was notified by his unit commander that separation action was being initiated on him under the provisions of chapter 
15-3b, Army Regulation 635-200, by reason of Homosexual Conduct, with an honorable discharge.    

7.  On 26 August 1998, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

8.  On 29 August 1998, the applicant’s commander forwarded his recommendation to the next higher authority.

9.  On 3 September 1998, the separation authority approved the discharge action and directed issuance of an honorable discharge.

10.  On 14 September 1998, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 15-3b, by reason of Homosexuality (Admission).  The DD Form 214 he was issued at the time confirms that he held the rank of private/E-3 (PFC) and completed a total of 2 years, 4 months, and 15 days of active military service.  The DD Form 214 also shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of JRB and an RE code of 4.  

11.  The applicant submitted two birth certificates for his children and the applicant submitted a copy of his divorce decree.

12.  Army Regulation 635-200 sets for the basic policy for the separation of enlisted personnel.  It provides, in pertinent part, that homosexuality is incompatible with military service.  The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct, seriously impairs the accomplishment of the military mission.  Paragraph 15-3b provides the criteria for separation.  It states that the basis for separation may include pre-service, prior service, or current service conduct or statements.  A member will be separated if the member has stated that he or she is a homosexual or bisexual, unless there is a further finding that the member is not a homosexual or bisexual. 

13.  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 (Regular and Reserve Components Enlistment Program) the covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) 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 RE codes, including RA RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

14.  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 of JRB is the appropriate code to assign to Soldiers who separated under the provisions of paragraph 15-3b of Army Regulation 635-200, by reason of Homosexual Admission.  The SPD/RE Code Cross Reference Table stipulates that the appropriate RE code assignment for the SPD code of JRB is RE code 4. 

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant’s record that shows he was threatened, coerced, or intimated into admitting that he was homosexual.  There is no evidence in his record nor did the applicant state that he was told to admit to being a homosexual.  

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  RE-4 applies to persons who are permanently disqualified for continued Army service.  By regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, chapter 15-3b for Homosexuality (Admission).  This includes the assignment of 
his SPD and RE codes.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  As a result, the RE-4 code was and is still appropriate.  

3.  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.

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)                                         AR20090005464





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ABCMR Record of Proceedings (cont)                                         AR20090007178



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