Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND07-00306

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

ex-HM1(FMF/SW), USN
ND07-00306

Current Discharge and Applicant’s Request

Application Received:  20070110 	Characterization Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason:  HOMOSEXUAL ACT Authority:  MILPERSMAN 1910-148

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issue(s):	1. Discharge Inequitable- one isolated incident

Decision

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).	
By a vote of 5-0 the Narrative Reason shall remain HOMOSEXUAL ACT.

Date:  20071011  			DOCUMENTARY REVIEW		Location:  Washington D.C. 	

Discussion

Issue 1 (Equity).  The Applicant contends that his discharge was inequitable as since it was “based on one incident in 16 years and 9 months of service”.  The NDRB advises the Applicant that despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline.  As noted in the Report of Trial by Summary Courts-Martial, the Applicant was convicted on 16 April 2003, for violation of Article 125, Sodomy.  During the proceedings, the Applicant admitted to performing a homosexual act on a subordinate, in the workplace, while in uniform and allowed the subordinate to perform a homosexual act on him.  Subsequently, on 22 May 2003, the Applicant was notified of Administrative Separation Processing and elected a board.  The Board voted unanimously to separate him for Homosexual Acts and recommended a general (under honorable conditions).  Pursuant to MILPERSMAN 1910-148 when a service member, during the current term of service, commits a homosexual act with aggravating circumstances such as acts with a subordinate that violate customary naval superior-subordinate relationship, in an area subject to Naval control, then an other than honorable is authorized.  The Applicant’s performance during the current period of service, which formed the primary basis for determining the character of his service, was marred by his conduct that involved several aggravating factors.  Based on the documents presented and Applicant’s own admission under oath, the board has determined that the basis for his separation and characterization of service as general (under honorable conditions) is substantiated.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Report of Trial by Summary Courts-Martial, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was proper and equitable.

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19861105 - 19870106  COG		Active:   USN	19870107 - 19920824  HON
	USN		19920825 - 20000823  HON			USN	20000824 - 20020814  HON
Period of Service Under Review:
Date of Enlistment: 20020815		Years Contracted:  3; Extension:  NONE.  		Date of Discharge:  20030926
Length of Service:  01  Yrs  01  Mths  12  Dys	Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  34	AFQT:  31/64	Highest Rank/Rate:  HM1
Evaluation marks (# of occasions):	Performance:  3.0(1)	Behavior:  4.0(1)	 OTA:  3.29 
Awards and Decorations (per DD 214):  FOURTH GOOD CONDUCT AWARD FOR PERIOD ENDING 01JAN05, NATIONAL DEFENSE SERVICE MEDAL (2^ND), NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2^ND), SOUTHWEST ASIA MEDAL (KUWAITI LIBERATION MEDAL, NAVY AND MARINE CORPS SEA SERVICE DEPLOYMENT RIBBON (2^ND), COMBAT ACTION RIBBON, FMF RIBBON

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20030416:	SCM -- Viol UCMJ Art. 125 - Sodomy.
	Awarded -  FOP ($1775.00) for (1 month); Restr for (20 days).  CA action:  20030429 approved and ordered executed.

Discharge Process

Date Notified:					20030522
Reason for Discharge:	HOMOSEXUAL CONDUCT
Least Favorable Characterization:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		20030603
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			ELECTED  (NOT FOUND IN RECORD)
	Administrative Board			ELECTED
	GCMCA review				NOT APPLICABLE

Administrative Board Date:	20030722
              Findings, by preponderance of the evidence:	BY UNANIMOUS VOTE HOMOSEXUALITY - SUPPORTED.
	BY UNANIMOUS VOTE SEPARATION WAS WARRANTED.
              Recommendation on Separation: 	BY UNANIMOUS VOTE SEPARATE 
              Recommendation on Characterization:	BY A VOTE OF 2-1 GENERAL (UNDER HONORABLE CONDITIONS)

Commanding Officer Recommendation (date):	GENERAL (UNDER HONORABLE CONDITIONS) (20030827)
Separation Authority (date):	COMNAVPERSCOM (20030911)
              Reason for discharge directed:	HOMOSEXUAL ACT
              Characterization directed:	UNDER HONORABLE CONDITIONS (GENERAL)
Date Applicant Discharged:	20030926

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  ☒		Other Records:  ☐

Related to Post-Service Period:  	
	Employment:  		☐	Finances:  		☐	Education: 		☐
	Health/Medical Records:  	☐	Substance Abuse:		☐	Criminal Records:  	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
	
Additional Statements From Applicant:  ☒	From Representative:  ☐  
Other Documentation (Describe) ☐      

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 
25 January 2004, Article 1910-148, SEPARATION BY REASON OF HOMOSEXUAL CONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023