MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 September 2002
	DOCKET NUMBER:   AR2002068195

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 DD Form 214 (Certificate of Release or Discharge From Active Duty) be corrected by changing his reentry eligibility (RE) code from RE-4 to RE-3, and his separation authority from chapter 15 to chapter 11.

APPLICANT STATES:  That he lied when he said that he was a homosexual.

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

He enlisted in the Regular Army for 5 years on 15 June 1998 and was sent to Fort McClellan, Alabama, for initial entry training.  On 2 July 1998, he informed his drill sergeant that he could not stand the Army and wanted to quit.  He added that he was having suicidal thoughts.

Also on 2 July 1998, the applicant informed an Army chaplain that he was a homosexual.  He was referred to his company commander and, on 7 July 1998, he verbally, and in writing, informed his commander that he was a homosexual and wanted to get out of the Army before he made advances toward other male soldiers.  The company commander explained the Army's "don't ask, don't tell" policy to the applicant and the applicant stated that he understood that policy.

On 8 July 1998, a clinical psychologist from the Fort McClellan Community Mental Health Service interviewed the applicant and cleared him for any and all administrative processing deemed appropriate by his chain of command.  On 15 July 1998, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 15, Army Regulation 635-200 with an uncharacterized discharge.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his behalf.  The unit commander subsequently recommended approval of the discharge action and forwarded it through command channels to the separation authority.  The intermediate commander reviewed the proposed discharge action and recommended approval with an uncharacterized discharge.  On 22 July 1998, the separation authority approved the separation action and directed that the applicant be discharged with an uncharacterized discharge.

On 24 July 1998, the applicant was discharged with an uncharacterized discharge under the provisions of paragraph 15-3b, AR 635-200, by reason of homosexual admission.  He was credited with 1 month and 10 days of active service.  He was assigned an RE code of RE-4, which means that he is not eligible to reenlist.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 8 May 2002, denied his request.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15 of that regulation states that active homosexuality is incompatible with military service and provides, in pertinent part, for the separation of members who actively engage in homosexual conduct or who, by their statements, demonstrate a tendency to engage in homosexual conduct.  Army regulation states that when the sole basis for separation is homosexuality, a discharge under other than honorable conditions may be issued only if such characterization is warranted in accordance with chapter 3, section III, and if there is a finding that during the current term of service the soldier attempted, solicited, or committed a homosexual act by using force, coercion or intimidation; with a person under 16 years of age; with a subordinate in circumstances that violate customary military superior subordinate relationships; openly in public view; for compensation; aboard a military vessel or aircraft; or in another location subject to military control if the conduct had, or was likely to have had, an adverse impact on discipline, good order, or morale due to the close proximity of other soldiers of the Armed Forces.  In all other cases, the type of discharge will reflect the character of the soldier’s overall record of service.

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, including RA RE codes.  RE-4 applies to persons not qualified for continued Army service.  Soldiers discharged under the provisions of chapter 15 of Army Regulation 635-200 are given an RE code of RE-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.  The applicant admitted, verbally and in writing, that he was a homosexual.  His drill sergeant, a chaplain, and his company commander counseled him.  He consulted with legal counsel, was advised of his rights, and was advised of the impact of a discharge under the homosexual provisions of chapter 15, AR 635-200.

2.  The applicant’s discharge proceedings were conducted in accordance with law and regulations.  The separation authority, narrative reason for separation, and the RE code are all correctly stated on his DD Form 214.

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

__fne___  __bje___  __wdb___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068195	
SUFFIX		
RECON		
DATE BOARDED	20020910	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.0300	
2.		
3.		
4.		
5.		
6.