MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003087168

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		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)

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APPLICANT REQUESTS: In effect, that his Reentry Code (RE Code), be changed from a "4."

APPLICANT STATES: In effect, "I am requesting to have my bar to reenlistment lifted. I would like to have the opportunity to reenlist should I choose to do so. I have been to my local National Guard post and have spoken with the reenlistment sergeant. He has told me that in order to reenlist, the DD Form 214 must show that my bar to reenlistment has been removed."

In support of his application, the applicant submitted a self-authored letter stating his reasons why he would like to reenlist; a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty; a copy of two DA Forms 638, Recommendation for Award, approving award of the Army Achievement Medal, 1st Oak Leaf Cluster, on 14 November 2000, and the Army Achievement Medal, on 3 November 1999 to him; a copy of his Certificate of Affiliation with the US Army Ordnance Corps, dated 17 March 1998; a Certificate of Achievement awarded him by the Commander, B Company, 187th Ordnance Battalion, 4th Training Brigade, Fort Jackson, South Carolina; a Certificate of Training (Basic Combat Training) dated 17 December 1997; a Certificate of Training (Air Assault School) dated 20 May 1998; and a Diploma (Wheel Vehicle Mechanic School) dated 17 March 1998.

The applicant states in his self-authored letter to the Board that he was given a Chapter 14 (sic) discharge for admitting to homosexual behavior. He adds that, "In February 2001, upon arrival to Fort Carson, I went to see a J.A.G. (Judge Advocate General) Officer. I informed that officer that I was homosexual and that I had been being threatened by other soldiers. He asked me what I wanted him to do about it and I told him that I wanted out of the military all together. I was let out less than a month later."

The applicant states that his present request is to be given the chance to go back in the Army. He is willing to sign any form or waiver that is needed to do so. He understands that homosexual behavior has no place in the US military. He is not proud of himself, his behavior, and does not condone any of this. He admits that he made a mistake while he was in service. This, he says, will not happen again if he is given this opportunity. He also knows that this is a decision he cannot make. He will respect any decision that is received from the Board.

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

He enlisted on 14 October 1997 for a period of 3 years and training as a wheel vehicle mechanic. He successfully completed basic combat training at Fort Knox, Kentucky, was sent to Fort Jackson, South Carolina, where he completed the Wheel Vehicle Mechanics Course on 17 March 1998. He was awarded the military occupational specialty 63B and was assigned to Fort Campbell, Kentucky, as his first duty station.

On 30 June 2000, the applicant reenlisted for assignment to Fort Carson, Colorado. He departed Fort Campbell on 5 January 2001 enroute to Fort Carson. On 25 January 2001, while in the replacement detachment, the applicant admitted to the first sergeant and the commander that he engaged in homosexual activities and had done so since the age of 15. The applicant subsequently made the same admission to a member of the Staff Judge Advocate’s Office.

He underwent a mental status evaluation on 31 January 2001 and was found to be mentally sound.

On 9 February 2001, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation (AR) 635-200, paragraph 15-3b, due to his admission of homosexuality.

After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

The appropriate authority approved the recommendation for discharge on 26 February 2001 and directed that he be furnished an Honorable Discharge Certificate.

The applicant was honorably discharged on 2 March 2001, under the provisions of AR 635-200, paragraph 15-3b, for admission of homosexuality. He had served 3 years, 4 months and 19 days of total active service and was awarded two awards of the Army Achievement Medal, the Army Service Ribbon, the Air Assault Badge, and the Sharpshooter Marksmanship Qualification Badges with Rifle and Hand grenade Bars.

The DD Form 214 that the applicant was provided on his discharge date shows AR 635-200, paragraph 15-3B as the Separation Authority, in Block 25; "JRB" as the Separation Code in Block 26; and "4" as the Reentry Code in Block 27; and "Homosexual Admission" as the Narrative Reason for Separation in Block 28. These three data elements are correlated to one another.

AR 635-200 serves as the authority for the separation of enlisted personnel. Paragraph 15-3b provides, in pertinent part, that a soldier will be discharged under this paragraph if he has engaged in, attempted to engage in, or solicited another person to engage in a homosexual act or acts. When the sole basis for separation is homosexual conduct, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with Chapter 3, Section II, AR 635-200. Unless otherwise ineligible, a soldier may receive an honorable discharge if he has, during his current enlistment, received a personal decoration.

AR 635-5 serves as the authority for the preparation of the DD Form 214. It states, in pertinent part, that AR 601-210, paragraph 3-22, determines RA (Regular Army) and USAR (US Army Reserve) reentry eligibility and provides regulatory guidance on the RE Codes. The reentry code narrative reason for separation that serves as the basis for an individual's separation will be entered on the DD Form 214 in Block 28. RE Code-4 applies to persons separated from their last period of service with non-waivable disqualifications. RE Code-3 applies to persons considered not fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. RE Code-1 applies to persons completing their term of active service and who are qualified to reenter the Army if all other criteria are met.

Table B-1, AR 635-5-1 specifies that persons being discharged from the Army for homosexual admission will be given a SPD Code of "JRB." The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table-March 2001 shows that persons given an SPD Code of "JRB" will be assigned an RE Code of "4."

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. The applicant admitted to being homosexual to his first sergeant, his unit commander, and a member of the Staff Judge Advocate's Office. In his admission, he stated to them that he had engaged in homosexual activities since the age of 15.

3. Based on this admission, the command initiated action to separate the applicant from the Army. The applicant's discharge was approved based on his admission to being a homosexual.

4. The Board finds that based on the evidence and circumstances of this case, the applicant was properly discharged in accordance with the applicable regulations in effect at the time and that he was issued the proper RE Code of 4 on his DD Form 214, on his discharge date. There is no basis upon which a change, of the RE Code on the applicant's DD Form 214, can be supported.

5. The applicant is advised that if he wishes to pursue reentering military service, he should contact a local recruiter for the branch of service he wishes to enter. If he meets all other enlistment criteria, the recruiter may submit a waiver request for the RE Code 4 through appropriate recruiting channels. The prerogative to waive the individual's reenlistment ineligibility rests with the Secretaries of the Army, Navy and Air Force. Each Secretary may allow an individual to enlist in the service under his jurisdiction.

6. 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

__hbo___ __tl_____ __ao____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087168
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20010302
DISCHARGE AUTHORITY	AR 635-200, chapter 15-3B
DISCHARGE REASON	Homosexual Admission
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2. 606	144.5900
3. 1021	100.0000
4. 4	100.0300
5.
6.