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Docket No. ND04-01193

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

ex-SR, USN
Docket No. ND04-01193

Applicant’s Request

The application for discharge review was received on 20040722.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record  review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041122.  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:  UNCHARACTERIZED/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.  “I would like to re-enlist”

Documentation

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

Copy of DD Form 214
Letter to Congresswoman Louise Slaughter, dated April 23, 2004 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	000928 - 010705	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  010706		Date of Discharge:  011219

Length of Service (years, months, days):

	Active:    00  05  14
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  45

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NFM

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No marks found in record

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

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

Chronological Listing of Significant Service Events:

011031:	Applicant’s Voluntary Statement made to MM1(SW) S_ C_ W_, concerning his homosexuality.

011114:	Applicant notified of intended recommendation for discharge with a least favorable characterization of uncharacterized by reason of homosexuality as evidenced by Applicant's statement that he admitted to being a homosexual.

011114:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

011121:	NJP held.  Nothing further found in record.  

011129:	Commanding Officer recommended discharge as uncharacterized (entry level separation) by reason of homosexuality as evidenced by the Applicant’s statement that he is a homosexual.

011210:	CNMPC directed the Applicant's discharge with characterization as uncharacterized (entry level separation) by reason of homosexual admission conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011219 with an uncharacterized (entry level separation) 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 discharge was proper and equitable (C and D).

Issue 1:  By regulation, members discharged within the first 180 days of enlistment are 
given a service characterization of  "Uncharacterized" unless there were unusual 
circumstances regarding performance or conduct, which would merit a general (under 
honorable conditions) characterization.  Homosexual conduct exists if a service member 
has stated that he is a homosexual or bisexual, or made other statements indicating a 
propensity or intent to engage in homosexual actions.  The Applicant stated he was a
homosexual on 20011031.  The Applicant's service record did not contain any unusual 
circumstances during his less than six months in the military to warrant a change of 
discharge.  Relief denied.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a 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.  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.