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Docket No. ND03-01162

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

ex-RM3, USN
Docket No. ND03-01162

Applicant’s Request

The application for discharge review was received on 20030626.  The Applicant requests the reason for the discharge be changed to “Time Up.”  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 20040504.  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 as discovered by the NDRB.  The Board’s vote was unanimous that the narrative reason of 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 I’m writing this is to change my narrative reason for separation and my re-entry code from a RE-4 to one where I could come in and reserve my country.  My narrative reason for discharge states “Homosexuality Conduct Admission”.  One night on liberty early in my Navy career I had sex (oral) with a she-male.  I didn’t realize this until after the fact.  This tormented me for quite some time for my savage act.  Since my discharge I’ve been on a spiritual quest with the end result being a rededication of my life to Jesus Christ.  During these times where war is imminent if my country needed me I couldn’t serve.  I made a mistake, changed my lifestyle & would like my reason of discharge to reflect this.  With this discharge/narrative reason for separation change I’d be in a position to serve if my country needed.  Pls take this into consideration.  Peace & God Bless.”

Documentation

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

Letters from Applicant (2)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR 		940107 – 940621	COG
	Active:    USN	R		940622 – 970619	HON

Period of Service Under Review:

Date of Enlistment:  970620		Date of Discharge:  980128

Length of Service (years, months, days):

	Active:    00  07  08
	Inactive:  00  00  00

Age at Entry:  20			Years Contracted: 4

Education Level:  12			AFQT:  45

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, MUC, NDSM, GCM, AFSM

Days of Unauthorized Absence:  None

*No Marks Available for review

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

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

Chronological Listing of Significant Service Events:

970620:	Reenlisted onboard USS SCOTT (DDG-995) for 4 years.

Undated:	Applicant’s Voluntary Statement made to Commanding Officer, concerning his homosexuality [Extracted from CO message].

980108:	Applicant notified of intended recommendation for honorable discharge 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 [Extracted from CO’s message].

980108:	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 [Extracted from CO’s message].

980108:	Commanding Officer recommended honorable discharge by reason of homosexuality as evidenced by his statement that he had engaged in homosexual acts.  

980113:	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 honorably discharged on 19980128 by reason of 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 discharge was proper and equitable (C and D).

Issue 1.  There is credible evidence in the record that the Applicant made a voluntary statement that he was a homosexual.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  Relief denied.

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’s discharge characterization accurately reflects his service to his country.  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 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.  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 18, effective 12 Dec 97 to 31 Aug 98, 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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