MEMORANDUM OF CONSIDERATION   

	IN THE CASE OF:       

	BOARD DATE:            03 DECEMBER 2002                  
	DOCKET NUMBER:   AR2002078173

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Charmane Collins		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:  In effect, that his Reentry Eligibility (RE) code be changed to permit him to return to military service.

APPLICANT STATES:  That he was told by his former commander that he would be permitted to return to military service 2 years after his separation from active duty.  However, he states he has recently discovered that his RE code 4 makes him ineligible for reenlistment.  He believes there may be a mistake in his case, although he realizes that he was discharged "for good reasons."  He asks the Board to consider his youth and lack of knowledge at the time of his separation and states that he is currently attending college and hopes to pursue a career as an officer in the United States Army.  Beyond his self-authored statement, the applicant submits no evidence in support of his request.

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

He initially enlisted in the Army National Guard on 21 January 1998 at the age of 17.  He was ordered to active duty for the purpose of undergoing training on 
18 March 1998 and on 11 May 1998 was released from active duty for "entry level performance and conduct."  Documents associated with his administrative separation from active duty were not available to the Board.  However, on 
12 May 1998 he was discharged from the Army National Guard under the provisions of National Guard Regulation 600-200 for "entry level status and conduct."  His service was uncharacterized.

On 13 November 1998 the applicant reenlisted in the Army National Guard.  He indicated in his enlistment documents that he had prior military service.  There is, however, no indication if a waiver for his prior service was obtained.  On 
16 September 1999 the applicant enlisted in the Regular Army for a period of 3 years.  He was 20 years old at the time he enlisted in the Regular Army.

In July 2000 the applicant's unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, Chapter 15, due to homosexual conduct.  The applicant's commander based his recommendation on the fact that the applicant had admitted to performing a homosexual act on another soldier while deployed to Kosovo.  The applicant acknowledged receipt of the proposed separation, consulted with counsel, and waived his attendant rights.  In his acknowledgment statement the applicant did note that he understood that he would "be ineligible to apply for enlistment in the United States Army for a period 2 years after discharge."

The recommendation was approved.  Although the applicant's separation document was not available to the Board, a discharge order indicates he was discharged on 16 August 2000.

Army Regulation 635-200, Chapter 15, states that soldiers who have engaged in, attempted to engage in, or solicited another to engage in a homosexual act may be administratively separated from the military.  That regulation also provides a sample format for use by commanders in preparing the acknowledgement and conditional wavier statement presented to soldiers being considered for administrative separation.  The sample format includes the statement that the soldier understands that he/she will be "ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge."

Pertinent Army regulations also 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 prescribed 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 individuals who were separated from their last period of service with a non-waivable disqualification.  Soldiers who were discharged as a result of acceptance of discharge as homosexual or discharge for homosexual tendencies are ineligible for reenlistment and receive an RE-4.

Additionally, Army Regulation 601-210 also states that a waiver may be obtained for individuals with prior military service who were separated for a variety of reason, including fraudulent entry, misconduct, unsatisfactory performance, etc.  However, such waivers may not be submitted until a 2-year period has elapsed since separation or discharge.  Separation for homosexuality is not among the list of reasons, which are eligible for waiver consideration.  Paragraph 4-24 of that regulation states that homosexual conduct is a disqualification, which cannot be waived.

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.  Although the applicant may have signed a waiver, which included the statement that he would be "ineligible to apply for enlistment in the United States Army for a period of 2 years" the basis for his separation disqualified him from returning to military service at any time in the future.  Clearly the inclusion of that statement in the applicant's acknowledgement statement was inappropriate.  However, the Board notes that the statement was not a guarantee that a soldier would be permitted to return to military service, only that he would be permitted to apply.  There was no implied guarantee in the statement that an application would be approved.  In the applicant's situation even if he applied for enlistment, his 2000 discharge would serve as a basis for denial.

2.  The applicant was separated from active duty because he admitted to a homosexual act and accepted an administrative separation as a result.  The Board notes that the applicant was 21 years old at the time.  Because he was not eligible to reenlist, he received an RE code of 4.  The RE code was proper, based on the circumstances of his separation.  There is no error or injustice in the applicant's RE code and the fact that he can not return to military service does not serve as a basis to change his correctly assigned RE code.

3.  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 that requirement.

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

__FNE__  __JEA___  __CC ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002078173	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021203	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.