MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 December 2002
	DOCKET NUMBER:   AR2002078733

	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	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Charmane Collins		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 Separation Program Designator (SPD) and Reentry (RE) code be changed and upgraded.  

APPLICANT STATES:  In effect, that he was given an honorable discharge with two years of benefits which is a clear reflection of the quality of his service.  He claims that his RE-4 code contradicts his honorable discharge and does not allow his reenlistment in the military.  He states that he gave this country honest and faithful service for almost five years with no record of disciplinary action, which should support his request.  

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

On 14 May 1997, he initially entered active duty and he served continuously for 
4 years, 8 months, and 23 days until being honorably discharged on 6 February 2002.  

The applicant’s record shows that the highest rank he attained while serving on active duty was specialist/E-4 (SPC/E-4).  It also confirms that during his active duty tenure he earned the following awards:  Army Commendation Medal; Army Achievement Medal; Joint Meritorious Unit Award; Army Good Conduct Medal; Humanitarian Service Medal; Army Service Ribbon; and Overseas Service Ribbon.  His record contains no disciplinary history or derogatory information.

On 8 August 2001, the applicant completed a sworn statement in which he admitted that he had always had the desire to engage in homosexual activities regardless of military policy.  Although, he later claimed that he was pressured into providing this statement, he never altered the admission contained therein.  

On 3 October 2001, the applicant’s unit commander recommended that the applicant be separated under the provisions of chapter 15, Army Regulation 
635-200, by reason of Homosexuality.  The reason for this action cited by the unit commander was the applicant’s admission that he was of a homosexual persuasion and that his military life was incompatible with his feelings.  

On 6 November 2001, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation and its effects, the rights available to him, the applicant chose to request consideration of his case and personal appearance before an Administrative Separation Board (ASB), and consulting counsel.  

On 4 January 2002, an ASB considered the case, with the applicant and his counsel present.  The ASB recommended that the applicant be separated from the service because of Homosexual Conduct, and that he receive an honorable discharge.  
On 23 January 2002, a representative of the Staff Judge Advocate reviewed the ASB record pertaining to the applicant and found it was legally sufficient, and that the evidence supported the findings and recommendations of the ASB.  

On 26 January 2002, the appropriate separation authority approved the findings and recommendations of the ASB, and directed that the applicant be honorably discharged under the provisions of chapter 15, Army Regulation 635-200, by reason of Homosexuality. On 6 February 2002, the applicant was discharged accordingly.

The DD Form 214 issued to and authenticated by the applicant with his signature on the date of his discharge confirms that he was discharged under the provisions of paragraph 15-3b, Army Regulation 635-200, by reason of Homosexual Admission.  It also verifies that based on the authority and reason for his separation, he was assigned an SPD code of JRB and RE-4 code.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 contains policies concerning homosexual conduct.  Paragraph 15-3b provides for the separation of members who make a statement that he/she is homosexual or bisexual.  

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.  The SPD code of JRB was the appropriate code for the applicant based on the guidance provided in this regulation for soldiers separating under the provisions of paragraph 15-3b, 
Army Regulation AR 635-200, based on a Homosexual Admission.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-4 as the proper reentry code to assign to soldiers separated under this authority and for this reason.  

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.  The Board notes the applicant’s request that his SPD and RE codes be changed and upgraded based on his overall record of honorable service.  However, it finds this factor is not sufficiently mitigating to warrant the requested relief. 

2.  The evidence of record confirms that the applicant completed a statement in which he made a homosexual admission, and he was processed for separation accordingly.  The record shows that the applicant’s discharge processing was accomplished in accordance with applicable regulations, to include the assignment of the proper SPD and RE codes.  
3.  The Board is also satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process, as is evidenced by the fact that his case was considered by an ASB, with he and his counsel present.  

4.  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. 

5.  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

__ FNE  _  __JEA___  ___CC__  DENY APPLICATION

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

INDEX

CASE ID	AR2002078733	
SUFFIX		
RECON		
DATE BOARDED	2002/12/03	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2002/02/06	
DISCHARGE AUTHORITY	AR 635-200 C15 	
DISCHARGE REASON	Homosexual Admission	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  4	100.0300	
2.  		
3.		
4.		
5.		
6.