BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090007517 


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 her reentry eligibility (RE) code be changed from RE-4 to RE-3 or lower.  

2.  The applicant states, in part, that her life in the Army started to get complicated when her first sergeant started to make unwanted advances towards her.  She told him to stop harassing her several times but he persisted.  She states the work environment became very hostile so she filed a complaint with the Judge Advocate General (JAG) and an investigation started immediately.  She argues that after the investigation started, all the rumors started and the pressure became unbearable.  

3.  The applicant states that as the situation was unfolding, another situation with a fellow Soldier, who was her friend, developed.  Her friend tried to commit suicide but the unit did not offer any assistance.  She believed she had no option except to get out of the Army with what was happening between her friend's situation and the first sergeant and other Soldiers harassing her.  She heard that the fastest way to get out was to tell them she was homosexual and that is why she approached her commander and requested to be separated.  The applicant concludes that she is not gay or bisexual and requests her RE code be changed so she can reenlist.

4.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and three third-party statements 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 5 April 2000 and upon completion of initial entry training was awarded military occupational specialty 96B (Intelligence Analyst).  

3.  The applicant's discharge proceedings are not available for review.  However, her DD Form 214 shows she was discharged on 16 August 2001, under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
15-3b, for homosexual admission.  Her character of service is shown as honorable.  She was given a separation program designator (SPD) code of JRB and an RE code of 4.

4.  The applicant stated that she filed a complaint with the JAG; however, the investigation proceedings and/or findings are not available for review. 

5.  The applicant provided three third-party statements which recommend the applicant be allowed to reenlist in the Army.

6.  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/she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the Soldier 
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.

7.  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 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 RE codes, including Regular Army RE codes.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

   a.  RE–4 applies to persons not qualified for continued service because they were separated from the service with a non-waivable disqualification such as conviction and sentence of a court martial.

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

	c.  RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army, so long as all other qualifications are met.

8.  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.

9.  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.  The applicant requests that her RE code be changed so she may reenlist.

2.  Although the applicant's discharge proceedings and the JAG investigation findings are not available, she admitted to her commander that she was a homosexual in order to be expeditiously separated.  Accordingly, she was discharged under the provisions of Army Regulation 635-200, paragraph 15-3b, because of her homosexual admission.  The applicant did not provide evidence which shows that any requirements of law and regulation were not met or that her rights were not fully protected throughout the separation process.  

3.  The fact the applicant now contends that her admission about being a homosexual was made in a state of desperation was noted and her desire to serve her country again as a Soldier is noteworthy.  However, the applicant's contentions do not change the reason for her discharge.

4.  The applicant's contention that she had no options except to get out of the Army due to the unbearable situations she was facing was also noted.  However, there is no evidence showing she ever sought assistance from outside command channels, such as the office of the chaplain or the equal opportunity channels, and the results of the JAG investigation are not available.  

5.  The applicant's RE code is based on her reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  Her narrative reason for separation was based on her homosexual admission and there is no basis upon which to change the reason for separation.

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)                                         AR20090007517



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ABCMR Record of Proceedings (cont)                                         AR20090007517



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