IN THE CASE OF:	  

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090020630 


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 code (RE) code of 4 be changed to an RE code of 3 or a more favorable code so she may reenter military service.

2.  The applicant states she was stationed in Korea at the time of her discharge.  She had a roommate who went through her personal laptop and managed to steal a personal video made the year before of her and her husband who was her boyfriend at the time.  The video consisted of her being intimate with another female.  The roommate made copies of the video and proceeded to sell them which led to the video being seen by everyone including her chain of command.  When she found out, she was very upset and hurt.  She had never gotten in trouble or received any nonjudicial punishment.  She is still married (although going through a divorce) and has a 7-month baby girl.  She did not want to fight the discharge at the time because she was worried about her husband who was in Iraq.  She would like to reenter military service and believes it is unfair that her RE code prevents her from doing so. 

3.  The applicant provides a copy of her marriage license, child's birth certificate, and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 21 April 2007, in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 21 September 2005 and held military occupational specialty 14T (Patriot Operator/Maintainer).  The highest rank/grade she attained during her period of military service was specialist/E-4.  She was assigned to the 1st Battalion, 43rd Air Defense Artillery, Korea.

2.  On 9 March 2007, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 15 of Army Regulation 635-200 (Personnel Separations), for homosexual conduct.  The specific reason was that images were found showing her kissing and engaging in oral sex with an unknown female.  This type of behavior was deemed to be a homosexual act and was in violation of the Department of Defense Homosexual Conduct Policy.  She had the burden to present evidence to refute this presumption if she so desired.  He recommended an honorable discharge.

3.  On 9 March 2007, she acknowledged receipt of the commander's intent to separate her, and on 14 March 2007 she consulted with counsel and was advised of the basis for the contemplated separation action, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to her. She voluntarily waived consideration of her case by an administrative separation board, waived personal appearance before a separation board, and elected not to submit a statement on her own behalf.  

4.  Subsequent to her acknowledgement and consult with counsel, her immediate commander initiated separation action against her in accordance with Army Regulation 635-200 by reason of homosexual conduct.  He and her intermediate commander recommended an honorable discharge.

5.  On 23 March 2007, a military trial counsel conducted a legal review of her separation packet and found it legally sufficient.

6.  On 23 March 2007, the separation authority approved the applicant’s discharge under the provisions of chapter 15 of Army Regulation 635-200 and directed she be issued an honorable discharge.  She was accordingly discharged on 21 April 2007.  Her DD Form 214 shows she completed 1 year, 7 months, and 1 day of creditable active service.  Item 26 (Separation Code) shows the entry "JRA" and item 27 (Reentry Code) shows the entry "4."

7.  She submitted a copy of her marriage license, dated 19 July 2006, and a copy of her child's birth certificate, dated 5 March 2009.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 states in pertinent part that a Soldier will be discharged if one or more of the following findings has been made and is approved by the separation authority: the Soldier has engaged in, attempted to engage in, or solicited another person to engage in, a homosexual act or acts unless there are further approved findings that (1) such acts are a departure from the Soldier’s usual and customary behavior, (2) such acts under all the circumstances are unlikely to recur; (3) such acts are not accomplished by the use of force, coercion, or intimidation; (4) under the particular circumstances of the case, the Soldier’s continued presence in the Army is consistent with the interest of the Army in maintaining proper discipline, good order, and morale; and (5) the Soldier does not have a propensity or intent to engage in homosexual acts.  In determining whether retention is appropriate, separation boards/authorities must ensure that all of the above limited conditions are met. Additionally, a determination as to whether retention is warranted under the limited circumstances is required if the Soldier clearly and specifically raises such limited circumstances.  However, the Soldier bears the burden of proving, by a preponderance of the evidence, that retention is warranted under the limited circumstances.  

9.  Army Regulation 635-200 states that prior to discharge or release from active duty, individuals are assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 includes a list of the RA RE codes.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  Their primary purpose is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "JRA" Separation Code is the correct code for Soldiers separating under chapter 15, Army Regulation 635-200, Homosexual Conduct (Acts).  

11.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The cross reference table shows the SPD code and a corresponding RE code.  At the time of his discharge, the SPD code of "JRA" had a corresponding RE code of "4."
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her RE code should be changed to RE-3 or better.

2.  The evidence of record shows the applicant’s RE code was assigned based on the fact that she was separated under the provisions of chapter 15 of Army Regulation 635-200 for homosexual acts.  Absent her acts, there was no fundamental reason to process her for discharge.  The underlying reason for her discharge was her homosexual acts.  The only valid narrative reason for separation permitted under that paragraph is "Homosexual (Act)" and the appropriate RE code associated with this discharge an RE-4 which is correctly shown on his DD Form 214.

3.  The applicant's desire to reenter the military was considered.  However, records are not corrected solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, she must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  She did not submit evidence that would satisfy this requirement; therefore, she is not entitled to relief.

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)                                         AR20090020630



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ABCMR Record of Proceedings (cont)                                         AR20090020630



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