MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            11 October 2001                  
	DOCKET NUMBER:    AR2001060370

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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 Eligibility (RE) code be changed from RE-4 to RE-3.

APPLICANT STATES:  That he is unable to reenter the military because of his RE code “4”.  In support of his application, he submits a letter addressed to the Board for Correction of Naval Records.

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

The applicant enlisted in the Regular Army on 15 September 1998 for a period of 2 years and 15 weeks.  He was assigned to the U.S. Army Infantry Training Brigade at Fort Benning, Georgia.

On 22 September 1998, the applicant submitted a sworn statement to his company commander admitting that he was gay and that he would continue to engage in homosexual acts.

The applicant received adverse counseling statements on 7 October 1998 and 5 November 1998 which informed him that he would be separated from the service under the provisions of Army Regulation 635-200, paragraph 15-3b, for homosexuality admission.

On 29 October 1998, the applicant was notified of pending separation action under the provisions of Army Regulation 635-200, chapter 15, paragraph 15-3b, for homosexuality.

On 29 October 1998, the applicant acknowledged the notification, waived consideration of his case by an administrative separation board, waived consultation with legal counsel and submitted a statement in his own behalf.  He underwent a mental status evaluation and a separation medical examination and was found fit for separation with a physical profile of 111111.

On 5 November 1998, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 15, paragraph 15-3b with issuance of an uncharacterized discharge.  The applicant was discharged on 12 November 1998.  He had 1 month and 28 days of active military service.  His DD Form 214 shows he was discharged with a separation code of “JRB” (Homosexual Admission) and a RE code “4”.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation states that homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.

Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator “JRB” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Homosexual Admission” and that the authority for discharge under this separation program designator is “AR 635-200, para 15-3b”.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper reentry code to assign to soldiers separated for this reason.

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.  

Table 3-6 of Army Regulation 601-210, in effect at the time, lists the Armed Forces RE Codes.  In pertinent part, this table states that RE-4 applies to persons with nonwaivable disqualifications including adverse RE codes.  Paragraph 3-6 states that RE codes are not upgraded unless they are administratively incorrect when originally issued.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant’s DD Form 214 shows he was discharged with a separation code of “JRB” (Homosexual Admission) and was assigned a RE code “4” in accordance with the governing regulation in effect at the time.  

3.  Notwithstanding the applicant’s contention that he is unable to reenter the military with a RE code “4”; he has failed to show through the evidence submitted or the evidence of record that the reenlistment code issued to him was administratively incorrect, or in error or unjust.  Therefore, his DD Form 214 is correct as currently constituted and there is no basis to change his reentry code of RE-4 to RE-3.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

JL______  MDM_____  JAM_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001060370	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011011	
TYPE OF DISCHARGE	UNCHAR	
DATE OF DISCHARGE	19981112	
DISCHARGE AUTHORITY	AR635-200,chapter 15-3B	
DISCHARGE REASON	Homosexual Admission	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.0300	
2.		
3.		
4.		
5.		
6.