Author: CAP
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Docket No. ND03-00395

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

ex-EMFR, USN
Docket No. ND03-00395

Applicant’s Request

The application for discharge review was received on 20030109.  The Applicant requests that the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20031215.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  The following issues are the reasons I believe my discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.  I am aware that at the time of my discharge I was in the wrong as far as being a homosexual.  Under the current standards, I would not receive the type of discharge I did.  Since my discharge, I have been a good citizen and have completed an AS degree in Electronics Technology, I am also attending school at the present time to get my Bachelor’s degree in Project Management.

When I was in the military I was very young minded and was very scared when the investigation came into full swing.  I had never been in any trouble and had no idea of how to react to the investigation.  I admit that I lied when asked if I was a homosexual but this is because I myself was confused.  Also, my parent had no idea of my sexuality and I had no idea of how I was going to tell them why I was being discharged.  When I originally enlisted in the military I had every intention of retiring, so when it was being taken away from me I panicked.

I hope that you can understand where I am coming from and feel that I deserve an Honorable discharge.

Thank you very much for your time in this matter”

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):

	Inactive: USNR (DEP)	881217 - 891203	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  891204		Date of Discharge:  910109

Length of Service (years, months, days):

	Active:    01  01  06
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  47

Highest Rate:  EMFR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.80 (1)	Behavior:  2.80 (1)		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

901101:	NJP for violation of UCMJ, Article 92: Between 900301 to 900331, fail to obey a lawful order by wrongfully having sexual relations in BEQ 531, room 352, with another military member; violation of UCMJ, Article 134: (2 Specs), between 900301 to 900331.  Spec 1: Wrongfully commit indecent acts with a civilian female; Spec 2: Make a false official statement regarding acknowledgement of waiver of rights.
	Award:  Forfeiture of $362.00 pay per month for 2 months, restriction to NTC  for 45 days, extra duty for 45 days.  No indication of appeal in the record.

901203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality due to your statement that you are a homosexual and due to engaging in, attempting to engage and soliciting another to engage in a homosexual act or acts as evidenced by your statement of 900914 and misconduct due to the commission of a serious offense evidenced by your Commanding Officer’s Nonjudicial Punishment of 901101.

901203:	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

901212:	Commanding Officer recommended discharge under other than honorable conditions by reason of homosexuality due to having stated that she is a homosexual and due to engaging in, attempting to engage and soliciting another to engage in a homosexual act or acts and misconduct due to the commission of a serious offense.  

901228:	CNMPC directed the Applicant's discharge under other than 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 19910109 under other than 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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s violations of Article 92 and Article 134 of the UCMJ are considered serious offenses and could have resulted in trial by a special court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required to warrant a change to her characterization of service.  The Board found that under current standards, the Applicant could have received the same characterization of service for the serious offenses she committed.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects her service to her country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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.
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