IN THE CASE OF:	  

		BOARD DATE:	    16 March 2010

		DOCKET NUMBER:  AR20090015307 


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 his general discharge under honorable conditions be upgraded to an honorable discharge.  He also requests that his reentry eligibility (RE) code of 4 be changed to permit him to join the Army Reserve or Army National Guard.

2.  The applicant states, in effect, he voluntarily wrote a statement admitting he was a homosexual, but he never considered himself a homosexual, nor did he want to be discharged.  Although the admission letter is in his handwriting the commander told him what to write in his statement.  He remained a part of his unit for 7 months after making the statement.  However, in 1991 a new company commander came in and he had discharge orders within a couple of weeks.  He states that his service was not without blemish; however, he believes his previous awards, performance evaluations, experience, level of maturity and education make him a great asset to the armed forces.

3.  The applicant provides his official college transcripts, a photocopy of his driver license, DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of the Army Discharge Review Board's (ADRB) proceedings, an Appraiser Certificate, a Certificate of Achievement, a certified abstract of marriage (marriage license), and his daughter's birth certificate 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 military records show he enlisted in the Regular Army on 13 April 1990.  He was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-2.  His records do not show any significant acts of achievement or valor during his military service.

3.  On 4 February 1991, the applicant made a written statement indicating that he was a homosexual and requested a discharge from Army.  He stated in his request for discharge that he was voluntarily making the request of his own free will. 

4.  On 5 March 1991, the applicant was notified of the proposed action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 15 for homosexuality based on his voluntary request for discharge.

5.  On 7 March 1991, the applicant was advised by consulting counsel of the basis for the contemplated action to separate him for homosexuality under Army Regulation 635-200, chapter 15 and its effects.  He was also advised of the rights available to him, and of the effect of any action taken by him in waiving his rights.

6.  On 21 March 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for falsely pretending to own a phone card that belonged to another Soldier and wrongfully using the card to obtain telephone company services in the amount of $1,150.00.

7.  On 12 April 1991, the appropriate authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate.


8.  On 29 April 1991, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 15-3b for admission of homosexuality/bisexuality.  He was assigned a separation program designator (SPD) of JRB and an RE code of 4.  

9.  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 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.

10.  Army Regulation 635-5-1 (SPD Codes), states the SPD code of JRB denotes admission of homosexuality/bisexuality.

11.  The U.S. Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that an SPD code of JRB is assigned an RE code of 4.

12.  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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve Components.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.  Table 3-1 of the regulation states that an RE code of 4 applies to persons separated from their last period of service with a nonwaivable disqualification.

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides that RE codes may be changed only if they are determined to be administratively incorrect.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

15.  On 4 June 2004, the Army Discharge Review Board denied the applicant's request for an upgrade of his general discharge to an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  On 4 February 1991, the applicant voluntarily admitted in a signed written statement that he was a homosexual and requested a discharge.  On 5 March 1991, the applicant was notified of the proposed action to separate him.  On 
7 March 1991, he consulted with counsel and was advised of his rights.  

2.  On 21 March 1991, the applicant accepted NJP for wrongfully using another Soldiers telephone card to obtain telephone company services in the amount of $1,150.00.  

3.  On 12 April 1991, the applicant's discharge action was approved.  On 29 April 1991, the applicant was issued a general discharged based on his service record.  The available evidence indicates his rights were protected throughout the discharge process.

4.  The applicant's post-military service to include his college degree and work experience are commendable; however, they are not sufficiently mitigating to warrant upgrading a properly-issued discharge.

5.  The SPD cross-reference table shows the applicant was appropriately assigned an RE code of 4 based on his reason for discharge.  

6.  There is no evidence in the available record and the applicant has provided no evidence that shows irregularity in the assignment of his RE code.  The applicant was disqualified from reenlistment based on his own admission of homosexuality/bisexuality and the disqualification is non-waivable under Army Regulations.

7.  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)                                         AR20090015307



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ABCMR Record of Proceedings (cont)                                         AR20090015307



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