Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND01-00457

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

ex-ATAN, USN
Docket No. ND01-00457

Applicant’s Request

The application for discharge review, received 010302, 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 010817.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I believe my discharge was improper because of the length of time I served in the Armed Forces, and because of the position I held there.  Although I was not a qualified naval aircrewman or a qualified in-flight technician, I did acquire over 1175 flight hours in about 20 months, and was ready for my check-ride when I lost my top-secret clearance.  In addition, I earned a 3-year good conduct medal while I served as well as numerous outstanding PRT awards.  I was dedicated and seriously motivated while I was enlisted in the Navy, and would like to continue my aeronautical motivation by continuing with a college degree.  An honorable discharge would allow me to further this education.

My discharge was based upon one incident, which I have regretted ever since that moment, and my accomplishments while I served did not have a bearing on that type of discharge decision.  I have wanted to join the naval reserve as well after my discharge, and a general discharge does not permit that.  I love my country and would like to continue to serve in any way I can.

I hope you pay close attention to my service record and my accomplishments while I served and can upgrade my discharge to an honorable one.  Thank you for your time and consideration.

Documentation

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

Copy of DD Form 214 (2 copies)
Copy of evaluations for 96Nov27 to 97Aug31, 98Jan16 to 98Jul15, 98Jul16 to 99Jun16, 99Jun17 to 00Apr10
Copies of aircrew deployment evaluations for 23Mar-08Apr98, 17Apr98-23Apr98, 2Aug-14Aug98, 14Sep98-28Sep98, 11Oct98-26Oc98, 24Oct98-13Nov98, 16Nov98-30Nov98, 28Dec98-12Jan99
Copies of counseling for 9Mar99 to 24Mar99, 18Apr99-3May99, 16May99-31May99, 11Aug99-27Aug99 and 19Nov99-4Dec99
Copy of certificate of completion dated November 27, 1996
Copy of certificate of completion dated March 11, 1997
Copy of certificate of completion dated April 14, 1997
Copy of completion of course dated June 14, 1997
Copy of certificate of completion dated September 9, 1997
Copy of certificate of completion dated September 11, 1997
Copy of certificate of completion dated October 15, 1997
Copy of certificate of training dated February 12, 1998
Copy of certificate of training dated March 13, 1998
Copy of completion of course dated March 6, 1998
Copy of certificate of training dated June 14-16, 1999
Copy of PRT for April 14, 1997, October 24, 1997, April 10, 1998 and September 24, 1999
Copy of certificate of achievement dated October 17, 1997
Copy of outstanding physical readiness award dated April 16, 1999
Copy of outstanding physical readiness award dated October 15, 1999
Two 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)	951129 - 960721	COG

Period of Service Under Review:

Date of Enlistment:  960722		Date of Discharge:  000410

Length of Service (years, months, days):

	Active:    03  08  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  86

Highest Rate:  AT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  2.50 (4)		OTA:  2.88

Military Decorations:  None

Unit/Campaign/Service Awards:  HSM, MUC, GCM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000118:	Applicant declared he is bisexual in the presence of Lt and YN3.

000208:	NJP for violation of UCMJ, Article 86: No further information found in service record, violation of UCMJ, Article 121: Larceny of Conair Digital Answering System and Telephone, a value of $29.95 and wrongful appropriation 
	Award: Forfeiture of $668 per month for 2 months, extra duty for 45 days, reduction to ATAN.  No indication of appeal in the record.

000313:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense and homosexual conduct.

000313:	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.

000313:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense and homosexual conduct.  Commanding officer’s comments (verbatim): ATAN (applicant) was caught shoplifting at the Main Exchange on or about 9 December 1999.  He was subsequently awarded punishment at Captains' Mast for this offense.  On or about 18 January 2000 he presented a declaration to the command that he is a homosexual.  I recommend that ATAN (applicant) be processed for discharge and his service be characterized as Other Than Honorable due to commission of a serious offense.

000327:	CNMPC directed the applicant's discharge General (under Honorable conditions) by reason of misconduct due to the Commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000410 General (under Honorable conditions) for misconduct due to commission of a serious offense (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 his discharge was improper because of the length of time he served and because of the position he held there.  The applicant was discharged for Commission of a serious offense.  He was on unauthorized absence, was guilty of larceny and made a voluntary statement that he was bisexual.  The discharge process was proper and equitable, therefore relief is denied.

Issue 2.  The applicant states his discharge was based on one incident.  The applicants discharge was based on violation of UCMJ, Article 121 and his voluntary statement that he was bisexual.  The discharge process was proper and equitable.  Relief denied.

The following is provided for the benefit of the applicant.  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.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 121 (larceny), if adjudged at a Special or General Court Martial

C.  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.  

D.  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.

E.  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

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:  A6730/A0107/A9203