IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100019670 


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 his:

* separation program designator (SPD) of "JRB" be changed
* reentry code of "4" be changed
* rank/grade be changed from private (PV2)/E-2 to specialist (SPC)/E-4 when he was discharged
* overseas service be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty)

2.  The applicant states another Soldier had an issue with him and wanted to get him into trouble which resulted in his being removed from the service.  His SPD and RE codes don't help him in seeking employment.  He does not know why his overseas service was not entered on his DD Form 214.

3.  The applicant provides a DA Form 4187 (Personnel Action) advancement to specialist, dated 8 June 2004; a DA Form 2586 (Verification of Military Experience Training), dated 1 April 2004, a Defense Finance and Accounting Service (DFAS) Form 702 (Military Leave and Earnings Statement (LES)) for the period 1-31 May 2004, and his DD Form 214.

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 that he enlisted in the Regular Army on 29 May 2002 and he was awarded military occupational specialty (MOS) 92G (food service specialist).

3.  His Enlisted Record Briefs (ERB), dated 17 April and 19 May 2004, show the applicant in pay grade E-2 with a date of rank (DOR) of 1 March 2004.  However, these forms show in Section III - Service Data, the applicant being promoted to pay grade E-4 on 1 March 2004.  These forms do not show any foreign service.

4.  On 27 March 2004, while deployed with his unit in Iraq, the applicant completed a DA Form 2823 (Sworn Statement).  In response to the question "Have you attempted to engage in homosexuality [sic] activities since we have been deployed to Operation Iraqi Freedom," the applicant responded under oath the answer "Yes."

5.  On 4 May 2004, the applicant's unit commander notified him of his intent to recommend his separation under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 15, by reason of homosexual conduct and of his rights in conjunction with that recommendation.  The applicant acknowledged receipt of the notification on the same day.

6.  On 5 May 2004, the applicant, having been advised of his right to consult with military counsel, voluntarily waived his right to see counsel at Trial Defense Services.

7.  On 6 May 2004, the unit commander recommended the applicant's separation under the provisions of Army Regulation 635-200, chapter 15, due to his admittance of his homosexual orientation and the propensity to engage in homosexual conduct.  The recommendation was subsequently approved by the appropriate separation authority on 9 May 2004.

8.  The applicant's May 2004 LES shows him in pay grade E-4.

9.  The DA Form 4187 submitted by the applicant shows his commander verified the information in the request to advance the applicant to SPC.  However, there is no evidence that the DA Form 4187 was approved.

10.  Accordingly, on 10 June 2004, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 15-3b, by reason of homosexual admission.  The DD Form 214 he was given shows his rank/grade as PV2/E-2; his SPD as "JRB," and his RE code as "4."  It also shows in item 12f (Foreign Service) the entry "0000  00  00."

11.  All the documents contained in the applicant's separation packet, statements from Soldiers concerning the applicant's homosexual attempt, and the applicant's own signed statements show his rank/grade as PV2/E-2.

12.  In the processing of this case the Board's staff contacted the Defense Finance and Accounting Service (DFAS).  After a review of the applicant's pay records the following promotion history was provided:

* E-1	20020529 - 20021128
* E-2	20021129 - 20030209
* E-3	20030210 - 20030519
* E-1	20030520 - 20040229
* E-4	20040301 - 20040303
* E-2	20040304 - 20040610

13.  The DFAS also confirmed that the applicant received hostile fire/Imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) from 10 January through 25 May 2004 for Kuwait, for a period of 4 months and 16 days.

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 "JRB" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 15-3b, by reason of homosexual conduct (admission).  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JRB.

15.  Army Regulation 635-200 further states, in pertinent part, 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 (RA) and the U.S. Army Reserve.  Table 3-1 includes a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it:

* states for item 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214
* directs that when an active duty Soldier is deployed with his or her unit during the period covered by the DD Form 214, an entry will be made in Item 18 to show "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYMMDD)"

DISCUSSION AND CONCLUSIONS:

1.  The applicant admitted to attempting to engage in homosexual activities in a sworn statement.  As such, separation action was properly initiated and processed.

2.  When the applicant was discharged, he was assigned the SPD code of "JRB" and the corresponding RE code of "4" in accordance with the applicable regulations.  Therefore, there is no basis for changing the properly issued codes.

3.  The documents contained in the applicant's records show conflicting information concerning his rank/grade on the date of his discharge.  Therefore, 
a DFAS official reviewed the applicant's official pay records.  As a result, his pay records show that while he was advanced to E-4 on 1 March 2004, he was reduced to E-2 on 4 March 2004.  Therefore, his rank/grade of PV2/E-2 is properly reflected on his DD Form 214.

4.  While the applicant records show he was deployed with his unit in support of Operation Iraqi Freedom, there was insufficient information to confirm his inclusive dates of deployment.  However, DFAS confirmed the dates he received HF/IDP and CZTE.  As such, there is sufficient evidence in which to add the foreign service time to item 12f and to enter the dates of his deployment in
item 18 of his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from item 12f of his DD Form 214 the entry "0000  00  00" and replacing it with the entry "0000  04  16"; and

   b.  adding to item 18 of his DD Form 214 the entry "SERVICE IN KUWAIT FROM 20040110 - 20040525."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his rank, pay grade, SPD code, or RE code on his DD Form 214.



      ___________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)                                         AR20100019670



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ABCMR Record of Proceedings (cont)                                         AR20100019670



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