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Docket No. ND02-00266

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

 ex-PCSN, USN
Docket No. ND02-00266

Applicant’s Request

The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021022.  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)/HOMOSEXUAL ACT, authority:  MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  (Equity Issue) This former member avers that his narrative reason for discharge, homosexual acts, is clearly erroneous.  Therefore, his character of service warrants upgrade to full honorable and his narrative reason amended to Secretarial Authority.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of DD Form 214
One hundred and seventy-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)	950612 - 950802	COG

Period of Service Under Review:

Date of Enlistment:  950803		Date of Discharge:  970718

Length of Service (years, months, days):

	Active:    01  11  16
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  69

Highest Rate:  PCSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OSR

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

970207:	Incident complaint report.  Complainant stated he witnessed an indecent act between T_ and P_.

970603:	Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by Applicant's statement that he engaged in homosexual acts.  Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.  
	Note:  Applicant never officially stated he had engaged in any homosexual acts.  Statement taken from sworn testimony provided by witness(s).

970603:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

970603:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed homosexual acts and that such acts warranted separation, and recommended discharge general (under honorable conditions).

970703:	Commanding Officer recommended discharge with (general) under honorable conditions by reason of homosexual conduct as evidenced by member (Applicant) engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts as evidenced by Indecent Complaint Report 07FEB97-46193-0035-8G1.

970718:	BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970718 with a general (under honorable conditions) by reason of homosexuality - homosexual acts (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 Board disagrees with the Applicant’s contention that his discharge was erroneous.  The Board presumes regularity in the processing of the Incident Complaint Report and the subsequent Administrative Discharge Board.  The Administrative Discharge Board, based upon a preponderence of the evidence and by unanimous vote, found that the Applicant had committed homosexual acts and that such acts warranted separation.  The Applicant’s discharge was proper and equitable and conducted IAW the direction provided by MILPERSMAN Article 3630400, Separation of Enlisted Personnel by Reason of Homosexual Conduct.  The characterization of the discharge is appropriate and no other reason code more accurately describes the reason for the Applicant’s discharge.  Relief denied.

Issue 2:  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.  The Applicant did not provide any post-service documentation to support his request for clemency.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

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 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:  A5900/A0107/A9221/