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Docket No. ND03-01045

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

 ex-AOAN, USN
Docket No. ND03-01045

Applicant’s Request

The application for discharge review was received on 20030530.  The Applicant requests the reason for the discharge be changed to “filing a false statement or any thing that deletes homosexual conduct since he lied to get discharged.”  The Applicant requests a documentary record 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 20040423.  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 reason for the discharge shall not change.  The discharge shall remain:  HONORABLE/ HOMOSEXUAL ADMISSION, authority:  MILPERSMAN, Article 1910-148 (previously 3630400).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The reason for discharge on the DD form 214 practically guarantees no job except minimum wage and the reenlistment code prevents him from joining any branch of service

First DD form 293 submitted Dec 27 2001
Second DD form 293 submitted Oct 28 2003

Letter from M. R_ I assume no action was ever taken on DD form 293’s of years 2001 and 2003

DD form 214.”

Applicant marked the box “I HAVE PREVIOUSLY SUBMITTED AN APPLICATION ON Dec 27, 2001 and Oct 28, 2002 AND AM COMPLETING THIS FORM IN ORDER TO SUBMIT ADDITIONAL ISSUES.”  Applications were not found.

Documentation

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

Applicant’s DD Form 214
Statement from Applicant’s father, undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	990420 - 990502	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  990503			Date of Discharge:  010620

Length of Service (years, months, days):

	Active:    02  01  18
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  11 GED			AFQT:  XX

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)			Behavior:  3.00 (2)		OTA:  3.17

Military Decorations:  None

Unit/Campaign/Service Awards:  N&MCOSR, SSDR

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (as corrected):

HONORABLE/HOMOSEXUAL ADMISSION, authority:  MILPERSMAN, Article 1910-148 (previously 3630400).

Chronological Listing of Significant Service Events:

990909:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order/regulation, violation of UCMJ, Article 134: False pass offense. 
	Award: Forfeiture of $234.00 per month for 1 month, restriction and extra duty for 14 days.  No indication in the record of appeal.  

010419:	Applicant’s Voluntary Statement made to Legal Officer, concerning homosexuality.

010419:	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 service may be general (under honorable conditions).

010419:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010420:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of homosexuality as evidenced by his statement that he had engaged in homosexual acts.

010509:	CNMPC directed the Applicant's discharge with a general (under honorable conditions) by reason of homosexual conduct, authority:  MILPERSMAN, Article 1910-148.

020725:	BCNR recommended Applicant’s naval record be corrected to show that on 010620 he was issued an honorable discharge.

020912:	BUPERS administratively reissued Applicant’s DD Form 214 to reflect character of service as Honorable.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010620, as corrected by the Board for Correction of Naval Records, with a honorable by reason of homosexuality -homosexual admission (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 reason for discharge was proper and equitable (C and D).

Issue 1:  There is credible evidence in the record that the Applicant admitted to homosexuality.  Mandatory processing for separation is required for sailors who take part in homosexual acts, admission, etc.  Separation under these conditions generally results in characterization of general (under honorable conditions).  The Applicant’s allegation, that he admitted to homosexuality because of his personal problems, does not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  No other Narrative Reason for Separation could more clearly describe whey the Applicant was discharged.  To change the Narrative Reason would be inappropriate.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 30, dated 
7 Nov 00, effective 24 Aug 00 until Present, Article 1910-148 (previously 3630400), Separation 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 “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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