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

ex-SK3, USN
Docket No. ND01-00450

Applicant’s Request

The application for discharge review, received 010227, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010719.  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 unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/HOMOSEXUAL ACT, authority:  MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am writing regarding the "other than honorable" classification I received for serving actively from 09-22-92, thru 07-19-96.  Currently, I am due to graduate in the fall with a Duel Bachelor's degree in Criminal Justice and Psychology.  Therefore, as one can ascertain I have been actively seeking employment.  However, it appears the greatest downfall that stands in my way from pursuing a career and really starting a new life is the "other than honorable" classification I received for the self-admission of my own sexual preference, (homosexuality).  As you will see by reviewing my records, I never forced by beliefs onto anyone, or verbally disrespected anyone else's beliefs, I simply admitted on record, my own preferences.  Retrospectively, I constantly relive the decision I made to go on record,( It still haunts me until this day), I guess we as human beings all have skeletons in our closets that we are not to proud of, well this is definitely mine.  I still metaphorically "kick my self' for making the confession that I did with only 2 months remaining from my initial EAOS.  When I was younger I used to think that people whom dwelled in the past for solutions to present problems were destined for error, because the present creates new situational factors unforeseeable, in the past.  However, I now understand that we as human beings must be very careful on how we shape our lives, every second of every day, is imperative to how we win be viewed by society, and paramount in creating the individual whom we will eventually become.  In conclusion, I respectively ask the gentlemen and ladies of the board to allow me a second chance at life and a future, because right now all I live in is the past, (the aftermath of the decision I chose to make more than 4 years ago).  Thus, I beg of thee, to allow me the privilege and honor of possessing an "Honorably" classified DD-214.  Sincerely,

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USNR (DEP)	920110 - 920921	COG

Period of Service Under Review:

Date of Enlistment:  920922		Date of Discharge:  960719

Length of Service (years, months, days):

	Active:    03  09  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  71

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.72 (5)	Behavior:  3.56 (5)		OTA:  3.80	4.0 evals
Performance:  2.50 (2)	Behavior:  2.50 (2)		OTA:  2.59	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  NER (2), NDSM, SSDR with 1 Star

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/HOMOSEXUAL ACT, authority: MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

941123:	NJP for violation of UCMJ, Article 117: Provoking gestures on 8Nov94, violation of UCMJ, Article 128 (2 specs): (1) Assault on 8Nov94, (2) Assault on 21Nov94.
	Award: Forfeiture of $574.00 per month for 2 months, restriction and extra duty for 45 days.  No indication in the record of appeal.  

941123:	Retention Warning:  Advised of deficiency (Provoking gestures and assault (twice).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950310:	Applicant completed Level II.

951215:	Counseling: Advised of deficiency (Diminishing performance), notified of corrective actions and assistance available.

960209:	Counseling:  Advised of deficiency (Disobeying a direct order.), notified of corrective actions and assistance available.  Applicant refused to sign.

960210:	Counseling:  Advised of deficiency (Failed to show up for work at 1800 on 10Feb96.), notified of corrective actions and assistance available.

960214:	Counseling:  Advised of deficiency (Unauthorized absence from appointed place of duty : DLR storeroom, found in male berthing playing cards.), notified of corrective actions and assistance available.

960215:	Applicant’s Voluntary Statement made to MACS, concerning his homosexuality.

960315:	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.

960401:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960508:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had admitted to being a homosexual and committed homosexual acts and that such acts warranted separation, and recommended discharge under other than honorable conditions.

960613:	Commanding officer recommended discharge under other than honorable conditions by reason of homosexuality as evidenced by applicant's statement that he had admitted to being a homosexual.  Commanding officer’s comments (verbatim):  “SK3 (applicant) made a statement under oath that he was homosexual and that he had committed a homosexual act onboard this command.  Although he elected to have his case heard before an administrative discharge board, he has not recanted his initial statement of being homosexual or the act on board this command.  His conduct cannot be tolerated and is detrimental to good order and discipline of this command and the Navy.  He possesses no potential for further naval service.  I concur with the administrative discharge board recommendation that he be separated from the naval service with characterization of discharge as Under Other Than Honorable Conditions (OTH).

960711:	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 960719 with an under Other Than Honorable conditions by reason of homosexual act (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).

Issue 1.  The applicant states, he has been actively seeking employment and wants a second chance at life.  The applicant made a voluntary statement that he was a homosexual and had committed homosexual acts.  The applicant was properly and equitably discharged.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  Therefore, relief is denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective  22 Jul 94 until 02 Oct 96, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls10.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