MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 February 2002
	DOCKET NUMBER:   AR2001064164

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:
1
	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. John T. Meixell		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 the Reenlistment (RE) Code on his report of separation (DD Form 214) be changed from RE-4 to RE-3.

APPLICANT STATES:  In effect, that he desires to reenter the military and since his discharge, the regulations and stipulations surrounding his type of discharge have changed.  He further states that he made up a story of being bi-sexual simply to get out of the Army because he was being harassed by his platoon leader at the time and after repeated attempts to get away from him failed, he decided to take the measures he took. 

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

He enlisted on 14 September 1982 for a period of 3 years and training as a tank turret repairman.  He completed his training and was transferred to Germany on 27 April 1983.  He was advanced to the pay grade of E-3 on 1 April 1984, and remained in Germany until 17 October 1984, when he was transferred to Fort Sill, Oklahoma.

On 16 January 1985, nonjudicial punishment was imposed against him for disobeying a lawful order from a warrant officer and failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and correctional custody for 7 days.

The applicant made a sworn statement to his commander on 5 February 1985 to the effect that he was bi-sexual, and that he had participated in sexual acts with persons of both sexes.  He also indicated that he was aware that he had to be discharged because people with such feelings as his were not suitable for military service. 

On 20 March 1985, the applicant underwent a mental status evaluation based on a referral by his commander due to his having admitted to being bi-sexual and having engaged in sexual acts with members of the same sex.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

The applicant’s commander notified him on 26 March 1985 that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 15, for homosexuality.  The applicant waived his right to consult with counsel and elected not to submit a statement in his own behalf.

The commander initiated the separation action on 27 March 1985, and the appropriate authority approved the recommendation on 3 April 1985.  He directed that the applicant be furnished an Honorable Discharge Certificate.

Accordingly, the applicant was honorably discharged on 8 April 1985, under the provisions of Army Regulation 635-200, paragraph 15-3b, for admission of homosexuality/bi-sexuality.  He had served 2 years, 6 months and 25 days of total active service and was issued a RE Code of 4.

The applicant applied to the Army Discharge Review Board (ADRB) on 27 June 1987 requesting that the narrative reason for his discharge and RE Code be changed.  Although the ADRB does not have the authority to change an RE Code, they reviewed his case to determine if the narrative reason for his discharge was correct.  The ADRB determined that he was properly discharged and unanimously voted to deny his case on 23 February 1988.

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 reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the 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 Regular Army RE codes.

RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a non-waivable disqualification such as homosexuality, a Department of the Army imposed bar to reenlistment or commission of a serious offense.  

Army Regulation 635-200, chapter 15, provides the policies and procedures for separating personnel for homosexuality.  Paragraph 15-3b provides, in pertinent part, that a soldier will be separated under that chapter if the soldier has stated that he or she is a homosexual or is bi-sexual, unless there is a further finding that the soldier is not homosexual or bi-sexual.  The regulation in effect at the time and presently in effect, provides that homosexuality seriously impairs the accomplishment of the military mission and is incompatible with military service.

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’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.
3.  The RE Code issued to the applicant at the time of his discharge was in accordance with the applicable regulations and the applicant has provided no evidence to show otherwise.

4.  The Board has noted the applicant’s contentions.  However, they are not supported by either the evidence submitted with his application or the evidence of record.  Accordingly, the Board finds that his contentions are not sufficiently mitigating to warrant relief, given the circumstances of his case and his otherwise undistinguished record of service. 

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

__jm____  __rvo ___  ___cla___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064164	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/28	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  4	100.0300/RE CODE	
2.		
3.		
4.		
5.		
6.