IN THE CASE OF:	  

		BOARD DATE:	    30 September 2010

		DOCKET NUMBER:  AR20100010281 


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 reentry (RE) code of "4" on his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 June 2007, be changed to an RE "3," "2" or "1" so that he may be eligible to reenter the Army.

2.  The applicant states he is not a homosexual and he would like to recant his admission so that he can reenlist in the Army.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  On 30 March 2007, the applicant enlisted in the U.S. Army Reserve for a period of 8 years under the Delayed Entry Program (DEP).  On 18 April 2007, he was released from the DEP and enlisted in the Regular Army on 19 April 2007, for a period of 4 years.  

2.  A DA Form 4856-E (Developmental Counseling Form), dated 15 May 2007, shows the applicant was counseled by his company commander.  The commander stated in Part III (Summary of Counseling) that he was counseling the applicant on the definitions of "Bisexual," "Homosexual," "Sexual Orientation," and "Homosexual Conduct," which included a homosexual act, a statement of homosexuality, and/or homosexual marriage/attempted marriage.  He also stated that if the applicant's conduct continued he would initiate action to separate him from the Army. 

3.  A copy of a second DA Form 4856-E, dated 1 June 2007, shows the applicant  was notified that he was being recommended for separation in accordance with chapter 15 (Homosexuality) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  The applicant agreed with the counseling and authenticated this form with his signature.

4.  On 30 May 2007, the applicant submitted a DA Form 2823 (Sworn Statement) in which he admitted to participation in homosexual acts with several members of the same sex.  He stated he believed he had a natural propensity to engage in sexual activity with members of the same sex.  

5.  On 4 June 2007, the applicant's commanding officer informed the applicant he was initiating action to separate him for homosexual conduct with an entry-level, uncharacterized discharge.  The commander stated the reason for this action was the applicant voluntarily disclosed he was a homosexual and that he had homosexual tendencies. 

6.  The applicant acknowledged receipt of the notification and stated that he waived consideration of his case by an administrative separation board and declined the opportunity to consult with counsel.  He also chose not to submit any statements on his behalf.  

7.  The applicant's commanding officer recommended to the separation authority that the applicant be discharged due to homosexual acts.  In his recommendation he indicated that a report of mental status evaluation or psychiatric evaluation was attached.  

8.  A copy of a DD Form 2808 (Report of Medical Examination), dated 20 June 2007, shows the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 2 2.  

9.  The applicant's battalion commander concurred with the applicant's company commander's recommendation and forwarded the request to the separation authority.   

10.  On 26 June 2007, the separation authority approved the recommendation for discharge due to homosexual conduct and directed that the applicant be issued an entry-level, uncharacterized discharge.  





11.  The applicant was discharged at Fort Benning, GA on 29 June 2007.   His DD Form 214 shows the following entries:

* Item 11 (Primary Specialty) – None//Nothing Follows
* Item 12 (Record of Service), item c (Net Active Service This Period) 
2 months and 12 days
* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – None//Nothing Follows
* Item 14 (Military Education) – None//Nothing Follows
* Item 25 (Separation Authority) - Army Regulation 635-200, paragraph 
15-3b
* Item 26 (Separation Code) – JRB
* Item 27 (Reentry Code) – 4
* Item 28 (Narrative Reason for Separation) – Homosexual Conduct (Admission)

12.  Army Regulation 635-200 provides for the separation of enlisted personnel.  Chapter 15 of that regulation prescribes separation of Soldiers for homosexuality, and states in pertinent part that homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual actions.  The basis for separation may include pre-service, prior service, or current service conduct or statements.  A Soldier will be separated if he or she has stated that he or she is a homosexual or bisexual, unless there is a further finding that the Soldier is not a homosexual or bisexual.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) defines the SPD Codes used on the DD FORM 214.  In this case, Army Regulation 635-5-1 shows that the SPD code "JRB" indicates that the separation authority is "Paragraph 15-3b, Army Regulation 635-200" and the narrative reason for the discharge is “Homosexual Admission."

14.  Table 2-3 (SPD/RE Code Cross Reference Table) establishes the RE codes to be used based on the appropriate SPD code.  In this case, the cross reference table shows that an RE code “4” is assigned when the SPD is "JRB."

15.  These codes are used for administrative purposes only for identification of an enlistment processing procedure.  The RE code of 4 applies to persons separated from his last period of service with a non-waivable disqualification.  This includes anyone discharged as a homosexual or with homosexual tendencies.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be changed for the purpose of reentering the Army was carefully considered; however, this is not supported by the evidence provided.

2.  Records show the applicant executed a sworn statement to the effect that he committed homosexual acts.  There is no evidence that his statement was false or otherwise in error.  The Army took his statement at face value and, as a result, he was counseled regarding separation for homosexuality.  

3.  The applicant was separated under the provisions of chapter 15 of Army Regulation 635-200.  At the time of separation, he received an SPD code of JRB and an RE code of 4.  This SPD code was the appropriate code for the applicant for Soldiers separating under the provisions of Army Regulation 635-200, chapter 15.

4.  Furthermore, in accordance with governing regulations, the correct RE code was entered on his DD Form 214 and it was consistent with the reason and authority for discharge.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.  It is clear that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

6.  Inasmuch as the applicant was discharged based on his own admission of homosexuality, the reason and authority for discharge are correct as currently constituted.  The applicant has submitted neither probative evidence nor a convincing argument to refute the admission that he made at the time of discharge.  Therefore, there is no basis to grant the requested 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)                                         AR20100010281



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ABCMR Record of Proceedings (cont)                                         AR20100010281



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