Author: CAP
Last saved by: Margaret L. Ryan
Company: NCPB

Docket No. ND99-00107

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

ex-MM3, USN
Docket No. ND99-00107

Applicant’s Request

The application for discharge review, received 981022, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed a civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990927.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was three to two that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ADMISSION, authority:  MILPERSMAN, article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  MM3 (applicant) is clearly entitled to an Honorable discharge.  His record and performance while on active duty exceed the requirements for assignment of the highest discharge.  The fact that he was separated for homosexuality/homosexual conduct does allow the Commanding Officer to arbitrarily assign a discharge not supported by the applicable regulations.  To do so is clearly an abuse of discretion resulting in an injustice to MM3 (applicant).  This injustice must be corrected, and MM3 (applicant) should be awarded the Honorable discharge that he duly deserves.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Memorandum in support of petition for upgrade of discharge ICO applicant.
Fifty-four pages from applicant's service record

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:    None
	Inactive:  USNR (DEP)	940112 - 940509	COG

Period of Service Under Review:

Date of Enlistment:  940510		Date of Discharge:  970724

Length of Service (years, months, days):

	Active:    03  02  15
	Inactive:  00  00  00

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  92

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  3.80 (2)		OTA:  3.80  4.0 evals

Performance:  2.66 (3)	Behavior:  3.00 (2)		OTA:  2.81  5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFSM, SSDR, NER, GCM, NATO, JMUC, HSM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ADMISSION, authority: MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

970619:	Applicant’s Voluntary Statement made to whom it may concern, concerning his homosexuality.

970619:	Applicant notified of intended recommendation for by reason of homosexuality as evidenced by applicant's statement that he admitted to being a homosexual.  Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.

970619:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970620:	Commanding officer recommended discharge under honorable conditions (general) by reason of homosexuality as evidenced by his statement that he had engaged in homosexual acts.  Commanding officer’s comments (verbatim):  “Machinist's Mate Third Class (Applicant)'s homosexual preference was first made known to me on 19 June 1997 when he made a visit to the Command Chaplain.  The Command Chaplain referred him to the Command Master Chief.  Petty Officer (Applicant) made a voluntary written statement to my Command Master Chief in which he stated that he was a bisexual, or words to that effect.  After reviewing his written statement, I conducted a personal inquiry with Petty Officer (Applicant) pursuant to reference (a).  The inquiry began with a thorough review of the Navy's policy on bisexuals which he acknowledged that he understood.  He then made a voluntary admission restating that he was a bisexual, that he had committed homosexual acts while attached to my command with another member of the command that he would continue to engage in homosexual activity in the future.  Further inquiry also determined that no homosexual activity to place on board ship nor any other place subject to military jurisdiction.  With regard to his performance, he is an average worker who no longer desires to remain in the naval service.  Accordingly, I strongly recommend that Petty Officer (Applicant) be separated immediately from the naval service with a discharge characterized as General under Honorable conditions."

970710:	Applicant’s Voluntary clarification Statement faxed to Legalman First Class R_ P_, concerning his homosexuality.

970715:	Commanding officer, USS GUAM (LPH 9) forwarded to BUPERS applicant's clarified statement of sexual preference.  As stated by the CO, USS GUAM, Petty Officer (applicant) a new statement on 10 July 1997 contains statements that are not correct.  During the investigation to determine if there was a basis for separation, applicant was specifically told that Chief of Naval Personnel was the separation authority. Additionally, he was never promised by the Executive Officer, Commander M_, of a characterization of service.  Applicant was advised of how similar cases have been resolved.

970718:	BUPERS directed the applicant's discharge with characterization as type warranted by service record by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 970724 with an general (under honorable conditions) by reason of homosexuality - homosexual admission (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In issue 1, the applicant avers that “his record and performance while on active duty exceed the requirements for assignment of the highest discharge”.  Even though the applicant’s final individual trait average was greater than 2.0 (MILSPERMAN 3610250(2)(b)(1), a statement by a member that he or she is homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  The member shall be given the opportunity to present evidence demonstrating that he or she does not engage in, or attempt to engage in, or have a propensity or intent to engage in homosexual acts. MILSPERMAN 3630400.  The applicant could have received, under the Manual for Courts Martial, a punitive discharge for violation of the Uniform Code of Military Justice, Article 125, for sodomy, if adjudged at a Special or General Court-Martial.  Relief will not be granted.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C) Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXUAL CONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX: A5900/A9411/A9421