MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  22 August 2000
	DOCKET NUMBER:  AR2000035712

	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. Lee Tinsley		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 Reentry Code (RE) be changed so that he may reenter the service.

APPLICANT STATES:  He was counseled prior to discharge that he would be eligible to reenter the service if, while out of the service, he did not engage in homosexual activities.  He also states that he is engaged to be married and would like to enlist back into the Army.

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

On 3 June 1993 the applicant enlisted into the Regular Army for a 4-year term and completed training as an Administrative Specialist (71L).  On 
4 December 1996 the applicant reenlisted for 3-years.  He was promoted to pay grade E-4 on 1 October 1994.

On 25 February 1998 the applicant’s company commander initiated involuntary separation action against the applicant due to the applicant’s sworn statement, dated 17 February 1998, of having a desire and intention to engage in bisexual and homosexual activity.  The battalion commander approved the request for separation on the same date the request was initiated.  The applicant was discharged in accordance with Army Regulation (AR) 635-200, paragraph 
15-3(b) with an RE code of 4.

AR 635-200, paragraph 15-3(b) states, in part, a soldier will be discharged if the soldier has made a statement that he or she is a homosexual or bisexual, or words to that effect.  A statement by the soldier that he or 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. The soldier shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence that demonstrates he or 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.

Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program, states an RE code may be changed only if there is evidence of an incorrect RE code or an administrative error.  There is no requirement to change an RE code to qualify for enlistment.  At the time of enlistment, the enlistment activity may request a waiver for a disqualifying RE code.  In accordance with AR 635-5, the reason and authority for the applicant’s separation directs the use of RE code 4.

However, under current enlistment standards, the Army is granting very few such waivers.

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 the aforementioned requirement.

2.  The applicant’s evidence and record have been examined and the current RE code was found to be both correct and just under the circumstances.

3.  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

    ew          mt              kl        DENY APPLICATION

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

INDEX

CASE ID	AR2000035712	
SUFFIX		
RECON		
DATE BOARDED	20000822	
TYPE OF DISCHARGE	HONORABLE	
DATE OF DISCHARGE	19980309	
DISCHARGE AUTHORITY	AR 635-200, Chap 15-3(B)	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  100.03	RE code change	
2.		
3.		
4.		
5.		
6.