Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND10-00453

ex-HN, USN

Current Discharge and Applicant’s Request

Application Received: 20091127
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) HOMOSEXUAL ACT
Authority for Discharge: (corrected) MILPERSMAN 1910-148 [HOMOSEXUAL CONDUCT]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	NFIR - NFIR  COG	Active:	USN 19881012 - 19920831 HON

Period of Service Under Review:
Date of Current Enlistment:  19920901	Age at Enlistment:  29
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  19941130	Highest Rank/Rate:  HM2
Length of Service:  02 Year(s)   03  Month(s)   00 Day(s)
Education Level:  12	AFQT:  27
Evaluation Marks:	Performance:  4.0 (5)	Behavior:  4.0 (5)	OTA:  4.00 (5)

Awards and Decorations (per DD 214):	SSDR KLM AFEM MUC NDSM NMCAM SWASM(2) NUC GCM

Periods of UA/CONF:  NONE

NJP:  1

- 19940810:	Article 134 (Assault, intent to commit sodomy), 2 specifications
		Specification 1: on or about 19940520, in BEQ 1792, Yokosuka Japan
		Specification 2: on or about 19940722, aboard USS Hewitt
	Article 134 (Solicit another to commit sodomy) on or about 19940724, Yokosuka Japan
	Awarded: RIR FOP  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “SSDR KLM CAR AFEM MUC NDSM NMCAM SWASM(2) NUC GCM CoC(4)”

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

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:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☐	Community Service:	☐	References:	☐
	Department of VA letter:	☐	Other Documentation:	☐
		Additional Statements:
	From Applicant:	☐	From/To Representation:	☐	From/To Congress member:	☐

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 
2 October 1996, Article 3630400, SEPARATION OF ENLISTED PERSONNEL 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.

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 134.  

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

Applicant’s Issues

1.	Applicant contends his discharge was improper and the resultant characterization of service inequitable.

Decision

Date:  20110113	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 HOMOSEXUAL ACT.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified one decisional issue for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service did not contain any negative NAVPERS 1070/613 (Page 13) retention warnings, but did include one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 134 (Assault, with intent to commit sodomy, 2 specifications: on 20 May 1994, BEQ 1792, Yokosuka Japan, and 22 Jul 1994 aboard USS Hewitt); and Article 134 (Soliciting another to commit an offense, 24 Jul 1994, Yokosuka Japan).  Violation of Article 134 (Assault, with intent to commit sodomy) is considered commission of a serious offense and punishable by up to 10 years confinement and a Bad Conduct or Dishonorable discharge if awarded as a result of trial by punitive court-martial (special or general court-martial).  Based on the offenses committed by the Applicant, his command opted not to refer him to trial by court-martial, but instead chose to administratively process him for separation.  Per the Naval Military Personnel Manual (MILPERSMAN), administrative processing for confirmed homosexual conduct is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board with representation by counsel.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was improper and the resultant characterization of service inequitable.  The Board conducted an exhaustive review of all available service records regarding the circumstances surrounding the Applicant’s discharge.  The Board noted the Applicant had a very strong record of exemplary performance during this, his second enlistment, with evaluation report averages of Performance (4.0), Behavior (4.0), and Overall Trait Average (4.0) over 5 reporting periods.  This record of performance was carried over from his first enlistment (Oct 88 - Aug 92) in which his evaluation record was equally strong with (4.0) Performance, Behavior, and OTA averages over 6 reporting periods, which was notable as the Applicant was a non-rated seaman “striking” for a Hospital Corpsman (HM) rating during his first enlistment.

The Applicant’s exemplary record of service continued until the June-July 1994 timeframe when three fellow Sailors (E-3s) informed the command that the Applicant had assaulted or otherwise attempted to solicit each of them to participate in homosexual conduct (oral sex) after becoming aware of similar events occurring between each of them and the Applicant.  After conducting a command inquiry, the Applicant’s commanding officer referred him to Article 15 Captain’s Mast on 10 Aug 1994 where he was found guilty of two counts of assault with intent to commit sodomy and one count of soliciting another to commit an offense, sodomy.  The Applicant was processed for administrative separation for commission of a serious offense and homosexual conduct (acts), and was referred for an Administrative Separation Board (ASB) proceeding.  On 14 Sep 1994, the ASB concluded its deliberations and found by 3-0 vote that the Applicant did commit a serious offense (assault with intent to commit sodomy); by 3-0 vote, the Applicant did commit or attempt to commit homosexual conduct; by 3-0 vote, the Applicant should be separated from service; and by 3-0 vote, the Applicant should receive an Under Other Than Honorable Conditions discharge.  On 6 Oct 1994, the Commander Fleet Activities (CFA) Yokosuka Japan recommended to the Commander, Navy Personnel Command (NAVPERSCOM) that the Applicant be administratively separated from the Navy for either commission of a serious offense or homosexual conduct (acts) with an Under Other Than Honorable Conditions Discharge.  On 15 Nov 1994, NAVPERSCOM concurred and directed the Applicant’s discharge for homosexual acts as recommended by the CFA Yokosuka.

In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a comprehensive review of the service record documentation, to include the Administrative Separation Board transcripts, the NDRB could not find any evidence to lend credence to the Applicant’s issue that he is innocent of the misconduct that led to his separation.  Furthermore, the NDRB reviewed MILPERSMAN section 1910-148, which provides details and guidance on administrative separations for homosexual misconduct, to determine whether the characterization of service was equitable based on the aforementioned misconduct and the Applicant’s totality of service during the enlistment period in which he was discharged.  The MILPERSMAN states that an Honorable or General (Under Honorable Conditions) discharge is warranted based on the member’s record of service.  An Under Other Than Honorable Conditions discharge is only warranted when homosexual acts are attempted, solicited, or committed by using force or coercion and/or if it occurs aboard a naval vessel.  Due to two of the homosexual acts involving assault with intent to commit sodomy and one of the homosexual acts of misconduct taking place aboard ship in the medical department or ‘sick bay,’ the Board determined that the Applicant’s characterization of service was warranted and in accordance with the governing directives at the time of discharge.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain HOMOSEXUAL ACT.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 - Nonjudicial 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	CCU - Correctional Custody Unit	BW - 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