MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 September 2002
	DOCKET NUMBER:   AR2002074846

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Karen Y. Fletcher		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
records
	Exhibit B - Military Personnel Records (including
advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his reentry (RE) code be changed.

APPLICANT STATES:  That he would like to know why he was given an RE code of 3.  He would like to go back into the military.  He provides his Certificate of Release or Discharge from Active Duty, DD Form 214, as supporting evidence.

EVIDENCE OF RECORD:  The applicant’s military records show: 

He enlisted in the Regular Army on 19 March 2002.

On or about 10 April 2002, the applicant apparently made the statement, "Everyone's picking on me because I'm gay" in front of about 30 trainees and three drill sergeants.

On 10 April 2002, the applicant made a sworn statement that he was a homosexual, that he never participated in homosexual acts while in the military, but that he had participated in such acts prior to joining the military.

On 16 April 2002, the applicant underwent a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and to be psychiatrically cleared for any administrative action deemed appropriate by his command.

On 18 April 2002, the applicant's commander recommended him for separation under the provisions of Army Regulation 635-200, chapter 15 for homosexual conduct.  He cited the applicant's admission that he was a homosexual as the basis for the recommendation.  

On 18 April 2002, the applicant was advised by consulting counsel of the basis for the contemplated action.  He elected not to make a statement in his own behalf.

On 22 April 2002, the appropriate authority approved the recommendation and directed the applicant receive an uncharacterized description of service.

On 29 April 2002, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 15 for homosexual admission.  He was given a separation program designator code (SPD) of JRB (involuntary discharge under 

the provisions of Army Regulation 635-200, paragraph 15-3b for homosexual admission) and an RE code of 3.  He had completed 1 month and 11 days of creditable active service and had no lost time. 

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 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE 3 applies to persons not qualified for continued Army service but the disqualification is waivable.  RE 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

The SPD/RE Code Cross Reference Table states that when the SPD is JRB then an RE code of 4 will be given.

Title 10, U. S. Code, section 1552 governs the correction of military records.  Section 1552(a)(2) states that a correction may be made only if the correction is favorable to the person concerned.

Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  Since the applicant was separated for homosexual admission, he should have been given an RE code of 4, a nonwaivable disqualification to reenlistment.  He was erroneously given an RE code of 3, a waivable disqualification.  However, by statute the Board cannot correct his record to reflect the RE code he should have been given as that correction would not be favorable to him.

3.  An individual has the right to apply for a waiver.  The applicant may periodically visit his local recruiting station to determine if he should apply for a waiver; however, in light of the reason for his separation he should be aware that it is unlikely a waiver would be approved.
4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__RVO_  __RJW___  ___KYF__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002074846	
SUFFIX		
RECON		
DATE BOARDED	2002/09/26	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.03	
2.		
3.		
4.		
5.		
6.