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Docket No. ND00-00384

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

 ex-OS1, USN
Docket No. ND00-00384

Applicant’s Request

The application for discharge review, received 000203, requested that the reason for the discharge be changed to administrative.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.
In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928.  After a thorough review of the records, 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 unanimous that the character of the discharge shall not change.  The discharge shall remain:  HONORABLE /Homosexuality – stated he or she is a homosexual or bisexual, authority:  MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  At the time of my discharge I was in psychological counseling for what I considered was an emotional problem.  Namely that experiences I had as a child were effecting me.  Because of the Navy policy at the time and because I was a dedicated sailor I accepted the discharge.  But I was not able to refute the claim that just because those activities happened when I was young, I was homosexual or bisexual.

2.  I want a chance to refute that accusation, I am interested in setting my record correct, upgrading my re-enlistment code, and perhaps joining the Naval Reserves.  I am not, nor have I ever been homosexual, and I do not live a lifestyles comparable to same sexuality.

3.  I would like my Re-enlistment Code upgraded to RE-R1. 

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    USN		850405 - 880602	HON
		    USN		801015 - 841012	HON
	Inactive   USNR		841013 - 841217	HON
	Inactive   USNR		841218 - 850404	HON
	Inactive:  USNR (DEP)	800801 - 801014	COG

Period of Service Under Review:

Date of Enlistment:  880603		Date of Discharge:  890811

Length of Service (years, months, days):

	Active:    01  02  09
	Inactive:  00  00  00

Age at Entry:  18			Years Contracted:  6 

Education Level:  12			AFQT:  56

Highest Rate:  OS1

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NAVY"E"RIBBON, HSM, SSDR (2^ND), GCA (2^ND)

Days of Unauthorized Absence:  None 

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

HONORABLE /Homosexuality – stated he or she is a homosexual or bisexual, authority:  MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

890514:	Applicant’s Voluntary Statement made to LCDR K.C. Mc________, JAGC, USNR, concerning his homosexuality.

890521:	Applicant notified of intended recommendation for by reason of homosexuality as evidenced by his statement that he engaged in, or intend to engage in homosexual acts.  Applicant advised, that if separation is approved, the characterization of his service may be general under honorable conditions.

890621:	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.

890622:	Commanding officer recommended discharge with type warranted by service record honorable by reason of homosexuality as evidenced by his statement that he had engaged in, or intend to engage in homosexual acts.

890712:	CNMPC 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 890811 with an honorable by reason of homosexual conduct – [stated he is a homosexual] (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to applicant’s issue 1, the Board found that the applicant made a voluntary statement concerning his homosexuality to a member of the Navy’s Judge Advocate General Corps on 14 May 1989.  The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.  A change in the reason for discharge is not warranted.

In issues 2 and 3, the applicant stated that he would possibly like to re-enlist and have his “Re-enlistment Code upgraded to RE-R1”.  The Board has no authority to change re-enlistment codes or make recommendations to permit re-entry into the Naval Service or any other of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), 15 June 1987 until 
14 Aug 91, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXUALITY. 

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

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
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  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/A9323/A9421/A9241