MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 December 2002
	DOCKET NUMBER:   AR2002079622

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Harry B. Oberg		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 the separation authority, narrative reason for his discharge, separation program designator (SPD) code, and reentry (RE) code he was assigned at discharge be changed.

APPLICANT STATES:  In effect, that the separation authority, narrative reason for discharge, SPD and RE codes he was assigned at discharge must be changed in order to allow him enlist in the Air Force.  He states that the separation action taken against him was an overreaction and not properly handled by his chain of command, and specifically his first sergeant (1SG).  He claims that a one time experiment resulted in the Army labeling him as a homosexual.  In support of application, he submits a copy of his separation document (DD Form 214), separation packet, and associated military documents.

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

On 26 July 2000, the applicant entered active duty in the Regular Army.  He completed training and was awarded military occupational specialty (MOS) 
92A (Automated Logistical Specialist).  His record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the highest rank he attained while on active duty was private first class/E-3.

On 15 March 2002, the applicant’s unit commander notified him that separation action was being initiated against him under the provisions of paragraph 15-3A, Army Regulation 635-200, by reason of the commission of a homosexual act.  The reason cited for the action was the applicant’s admission in a sworn statement that he had participated in a homosexual act.  The applicant consulted legal counsel and after being advised of the basis for the contemplated separation action, he requested consideration of his case by a board of officers.

On 10 June 2002, a Board of Officers convened to consider the applicant’s separation from the service.  This board determined that the applicant did participate in a homosexual activity; and it recommended that he be discharged under the provisions of paragraph 15-3A, Army Regulation 635-200, and that he receive an honorable discharge.

On 26 June 2002, the appropriate authority approved the findings and recommendation of the Board of Officers and directed that the applicant be discharged and receive an HD.  On 27 July 2002, the applicant was discharged accordingly.  At the time of his discharge, he had completed a total of 2 years and 1 day of active military service.

The DD Form 214 issued to the applicant on the date of his separation confirms that he was discharged under the provisions of paragraph 15-3a, Army Regulation 635-200, by reason of committing a Homosexual Act.  It also verifies that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of JRA and a reentry (RE) code of RE-4.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 contains policies concerning homosexual conduct.  Paragraph 15-3a, provides for the separation of members who engaged in, or solicited another to engage in a homosexual act.  

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.  This regulation establishes the SPD code of JRA as the appropriate code to assign soldiers separated under the provisions of paragraph 15-3a, Army Regulation AR 635-200, based on committing a Homosexual Act.  Additionally, the SPD/RE Code Cross Reference Table establishes RE Code 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 the authority and narrative reason for his discharge, and the resultant SPD and RE codes assigned be changed in order to allow him to enlist in the Air Force.  However, the Board finds insufficient evidence to support these claims.

2.  The evidence of record confirms that by his own admission, the applicant engaged in a homosexual act.  As a result, he was separated under the provisions of paragraph 15-3a, Army Regulation AR 635-200, based on engaging in a homosexual act.  Lacking evidence to the contrary, the Board finds that the separation authority, narrative reason for separation, to include the SPD and RE code assignment, were accomplished in accordance with the applicable regulation.

3.  The Board also finds that the RE-4 code assigned the applicant was appropriate based on the authority and reason for his discharge and the basis for this RE code assignment has not changed.  In addition, there is no basis changing his RE code and the disqualification upon which the code was based is nonwaivable for reenlistment purposes.  

4.  The evidence of record also confirms that the applicant’s case was considered by a Board of Officers, at which the applicant and his legal counsel were personally present.  The Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

5.  In view of the facts of this case, and given the applicant’s admission that he did engage in a homosexual act prior to his separation, the Board is compelled to deny the applicant’s requested relief.  

6.  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.

7.  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

__RWA__  __KYF___  __BPI__  DENY APPLICATION

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

INDEX

CASE ID	AR2002079622	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/12/19	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.