MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2002078752

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Ms. Gail J. Wire		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: That his reenlistment eligibility code (RE code) be changed to allow him reenter military service.

APPLICANT STATES: In effect, he is not now nor was he ever homosexual or bisexual. He states that he was a confused and uncounseled teenager who was unjustly discharged.

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

The applicant entered active duty on 11 January 1989. He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 11B (Infantryman).

The applicant’s record contains several general counseling statements, all of which are favorable except one dated 30 September 1989. This counseling statement indicates that the applicant had failed to report for post police duty due to having gotten lost while returning from authorized leave.

On 2 February 1990, after being counseled on his rights under Article 32, Uniform Code of Military Justice (UCMJ), the applicant was counseled by the brigade chaplain at which time the applicant admitted to being bisexual and having practiced homosexual acts.

On the same date, the division psychologist saw the applicant and completed a SA Form 3822- R (Report of Mental Status Evaluation). The psychologist indicated that there is no objective test to determine homosexuality. He indicated that the applicant reported an attraction to men and identified himself as bisexual. The applicant was found to be psychiatrically cleared for administrative actions deemed appropriate, including separation from the military.

On 26 March 1990, the applicant’s unit commander notified him that he was initiating elimination action due to an admission of homosexuality.

On 30 March 1990, after consulting with military counsel, the applicant signed an SJA Form 2 (Acknowledgment of Notification) acknowledging that he was being processed for discharge due to an admission of homosexuality. He waived his right to a personal appearance or to have his case reviewed by an administrative separation board. The applicant originally requested that this waiver be contingent upon receipt of an honorable discharge but at some point changed this to receiving not less than a general discharge.

The separation authority approved the recommendation and directed that a general discharge be issued.

The applicant was discharged on 5 April 1990 with a general discharge due to admission of homosexuality. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he had 1 year, 2 months, and 25 days of creditable service. In accordance with regulation the applicant received an RE 4 code.

On 5 April 2002, the Army Discharge Review Board (ADRB) upgraded the characterization of his service to honorable. The ADRB did not change the narrative reason for discharge.

Army Regulation 600-20 contains general policies concerning homosexual conduct, including statutory provisions, pertinent definitions, and commander guidelines for fact-finding inquiries. Except as indicated, a soldier will be discharged if one or more of the following findings has been made and is approved by the separation authority:
a. The soldier has engaged in, attempted to engage in, or solicited another person to engage in, a homosexual act or acts unless there are further approved findings that--
(1) Such acts are a departure from the soldier's usual and customary behavior.
(2) Such acts under all the circumstances are unlikely to recur.
(3) Such acts are not accomplished by the use of force, coercion, or intimidation.
(4) Under the particular circumstances of the case, the soldier's continued presence in the Army is consistent with the interest of the Army in maintaining proper discipline, good order, and morale.
(5) The soldier does not have a propensity or intent to engage in homosexual acts. In determining whether retention is appropriate, separation boards/authorities must ensure that all of the above limited conditions are met. Additionally, a determination as to whether retention is warranted under the limited circumstances is required if the soldier clearly and specifically raises such limited circumstances. However, the soldier bears the burden of proving, by a preponderance of the evidence, that retention is warranted under the limited circumstances.
b. The soldier has made a statement that he/she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the soldier has demonstrated that he/she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
(1) A statement by the soldier that he/she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the soldier engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
(2) The soldier will be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence that demonstrates he/she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. The soldier bears the burden of rebutting the presumption. In determining whether a soldier has successfully rebutted the presumption, some or all of the following may be considered:
(a) Whether the soldier has engaged in homosexual acts.
(b) The soldier's credibility.
(c) Testimony from others about the soldier's past conduct, character, and credibility.
(d) The nature and circumstances of the soldier's statement.
(e) Any other evidence relevant to whether the member is likely to engage in homosexual acts.
c. The soldier has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved).

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 US 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. An RE 4 code is a nonwaiverable bar to reenlistment, and assignment of an RE 4 for admission of homosexuality mandatory.

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

1. Correction of appropriate military records to show a RE 1 code, which would allow reenlistment, in effect constitutes a request for removal or waiver of those disqualifications, which preclude reenlistment.

2. The applicant has provided no evidence that he is not homosexual or bisexual. He has neither substantiated his contention that he was a confused youth who simply needed counseling nor effectively rebutted the statements that led to his discharge. He did not even indicate whether he needed counseling concerning his sexual orientation or his commitment to the Army.

3. From the Board's perspective the most favorable interpretation that could be placed on this case is that he used a convenient excuse to not fulfill his enlistment. Such behavior does not warrant removal or waiver of the disqualification that depended solely upon the applicant's assertions at the time of the discharge.
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.

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

---

INDEX

CASE ID	AR2002078752
SUFFIX
RECON
DATE BOARDED	20030522
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	Change RE code
2.
3.
4.
5.
6.