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

Docket No. ND08-01927

ex-YNSN, USN

Current Discharge and Applicant’s Request

Application Received:  20080918
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge:  MILPERSMAN 3630600

Applicant’s Request:  Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19930930 - 19940710  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  19940711	Age at Enlistment:  23
Period of Enlistment:  4 Years  24 MONTHS Extension
Date of Discharge:  19980915	Highest Rank/Rate:  YN3
Length of Service:  04 Years   02  Months   05 Days
Education Level:  12	AFQT:  88
Evaluation Marks:  Performance:  2.8 (9)               Behavior:  3.0 (9)           OTA:  3.04

Awards and Decorations (per DD 214):	MUC NAVY "E" NDSM AFEM SSDR NMCOSR

Periods of UA/CONF:  NONE

NJP:  2
- 19970626:	Article 92 (Failure to obey a lawful order)
	Awarded: EPD RIR FOP  Suspended:  RIR FOP

- 19980721:	Article 92 (Failed to obey a lawful order)
	Article 125 (Sodomy)
	Awarded: FOP RESTR RIR  Suspended:  NONE

SCM:  NONE    SPCM:  NONE    CC:  NONE

Retention Warning Counseling:  1

- 19970701:	For violation of the UCMJ, Article 92: Failure to obey a lawful order 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 12b, Separation Date This Period, should read: “98 AUG 31”
	Block 12c, Net Active Service This Period, should read: “04 01 21”
	Block 25, Separation Authority, should read: “1910-140"
	Block 26, Separation Code, should read: "HKA"
	Block 28, Narrative Reason for Separation, should read "Pattern of Misconduct"

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  ☒	 Service/Medical Record:  ☒		  Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☒
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
              Additional Statements:
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐
                    Other Documentation:  ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
21 August 2002, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ:  Article 92 (Failure to obey a lawful order or regulation) and Article 125 (Sodomy).

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

Applicant’s Issues

1.  The charge of Article 125, (Sodomy) relating to consensual activity was reversed and remanded
2.  Inexperience and gross immaturity caused him to participate in “group activities”. 

Decision

Date:  20090129	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

Issue 1:  (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge should be upgraded since the charge of a violation of the Uniform Code of Military Justice, Article 125 (Sodomy), relating to consensual activity was reversed and remanded by the U. S. Supreme Court in Lawrence v. Texas (2003).  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.  The Applicant’s record of service reflects he was awarded NJP twice during his enlistment for violations of the Uniform Code of Military Justice (UCMJ):  Article 92 (2 specifications), for failure to obey order by having female guest in the bachelor enlisted quarters (BEQ) after hours and fraternizing with members of different ranks and grades, and Article 125 (Committing sodomy with female service members while attached to or embarked on a Navy vessel).  

The decision in Lawrence v. Texas pertained to consensual sexual activity between two males in the privacy of their home, unlike the Applicant who was discharged from military service after committing sodomy with females on board a Navy vessel, fraternizing with various members at or near a hotel in Kowloon Peninsula, China and violating Navy regulations by having females in his BEQ after hours.  The Applicant’s statement the U. S. Court of Appeals for the Armed Forces ruling Lawrence v. Texas applies to Article 125, thus banning sodomy, is not accurate.  The ruling applies only to conduct involving sexual activity between consenting adults.  Furthermore, there is no evidence in the record or provided by the Applicant to prove the sodomy committed by him with the females was consensual, between couples or private in nature.  Additionally, the Applicant’s statement in his DD Form 293, section 15, Remarks, contained the following admission: “I participated with a group in activities from which a complaint was made against a specific individual … led to the disclosure that a number of had been engaged in unnatural carnal copulation with certain other person(s) such that, in my case…”  

The comments on the Applicant’s discharge performance evaluation of 31 July 1997 indicated the Applicant had no interest in adapting to military standards, lacked self control, displayed no commitment to professional development and was a discredit to good order and discipline.  The NDRB concurred with the commanding officer’s statement; such conduct is detrimental to good order and discipline, consensual or not.  Based on the foregoing evidence and lack of mitigating circumstances, the Board determined the awarded discharge characterization of service was appropriate and an upgrade would be inappropriate.  

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he was inexperienced and immature at the time and wiped out 4 years of exemplary service “marred by one incident in 1997 and permanently severed my proud relationship with the US Navy.”  As noted above, the record reflects two NJP’s during this enlistment:  One on 26 June 1997 and the second on 21 July 1998.  Therefore, his statement regarding an isolated incident is without merit.  The allegation of being inexperienced is also without merit since the Applicant had 4 years of Naval experience at the time of the second offense and should have known such conduct was in violation of Navy policy.  The service record reflects the Applicant signed a letter on 17 June 1997 acknowledging he received training on Integration of Women, sexual harassment, fraternization, etc.  He attended this training a year prior to committing the last offenses, which contained the charge of Sodomy.  The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service  Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.  

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		CC - Civilian conviction	B&W – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water