MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: 21 October 2003
                  DOCKET NUMBER: AR2003089486

         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. Yvonne J. Foskey		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones		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 (RE) code of RE-4 be changed.

APPLICANT STATES: In effect, that due to domestic problems with his spouse he became confused and stressed. He claims this resulted in his falsely claiming that he was a homosexual. He states that he could not deal with his marital problems while in the Army and this affected his military duties. He further claims that he felt he needed a quick way out of the Army to deal with these problems and he chose this course of action. He points out that the action he took was not a joke and he felt it necessary to deal with his pressing issues at the time. He further states that he was under the impression at the time that he would be able to reenter the military after two years and resume his military career. He admits now that he lied in his petition to the Army Discharge Review Board (ADRB) and apologizes for trying to blame others for his mistakes. He asks that mercy be granted and that he be allowed to prove he is sorry for his actions. He states that he now wishes to reenter the Army and resume his military career. In support of his application, he provides a copy of a divorce decree and several supporting character reference letters.

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

On 31 August 2000, he enlisted in the Regular Army and entered active duty for a period of 3 years. He successfully completed training and was awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist).

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition. It is also void of any derogatory information or disciplinary history prior to the situation that ultimately led to his discharge. The record further shows that the highest rank he attained while serving on active duty was private/E-2 (PV2).

On 13 August 2001, the applicant completed a memorandum in which he admitted to being bisexual. He further confirmed that he had a natural propensity to engage in sexual activity with members of the same sex. Based on this admitted sexual orientation, he requested to be discharged from the Army. As a result of this memorandum, the applicant’s unit commander initiated separation action against the applicant under the provisions of chapter 15, Army Regulation 635-200, by reason of homosexual conduct.

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On 23 August 2001, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action and its impact,
he completed his election of rights by waiving his right to have his case considered by an administrative separation board. The separation authority approved the separation action and directed that the applicant receive an honorable discharge. On 13 September 2001, the applicant was discharged accordingly.

The separation document (DD Form 214) issued to the applicant on the date of his discharge, 13 September 2001, confirms that the authority for his separation was paragraph 15-3b, Army Regulation 635-200, and the narrative reason for separation was homosexual admission. This document also verifies that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of JRB and an RE code of RE-4.

The applicant provides letters of support from family members, friends, and
co-workers. The individuals who submitted these character references all attest to the fact that the applicant is not a homosexual. They further indicate that this homosexual label began while the applicant was experiencing marital difficulties while serving in the Army. The applicant also submits a divorce decree that confirms that he was ultimately divorced from his wife.

On 23 August 2002, the ADRB reviewed the applicant’s case and found his discharge was proper and equitable. As a result, it voted to deny the applicant’s request to change the reason for his discharge.

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 based on an admission of homosexuality.

Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR). 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-4 applies to persons separated from their last period of service with a non-waivable disqualification.

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Army Regulation 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 635-200, by reason of admission of homosexuality.
The SPD/RE Code Cross Reference Table used in conjunction with this regulation establishes that RE-4 will be the code assigned to members separated with this SPD code.

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 contention that he was never really a homosexual, but used his admission in order to expedite his discharge in order to deal with his marital problems. However, even if this is true it does not provide a sufficiently mitigating basis to support granting the requested relief.

2. The evidence of record confirms that the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 15-3b, by reason of admission of homosexuality. It also verifies that he was assigned a SPD code of JRB and an RE-4 code in accordance with the applicable regulation.

3. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, in view of the circumstances in this case, the Board finds the RE-4 code was appropriately assigned based on the authority and reason for the applicant’s discharge, and the basis for this RE code assignment has not changed. Therefore, the Board concludes there is an insufficient basis for changing it at this time.

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

__FCJ___ __WDP__ __MM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089486
SUFFIX
RECON
DATE BOARDED	2003/10/21
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20001/09/13
DISCHARGE AUTHORITY	AR .635-200
DISCHARGE REASON	Homosexual admission
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.