ex-MASA, USN

Current Discharge and Applicant’s Request
Application Received: 20101229
Characterization of Service Received:  
Narrative Reason for Discharge:  HOMOSEXUAL ADMISSION
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20021108 - 20021111  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20021112	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050617	Highest Rank/Rate:  MASN
Length of Service:   Year(s)     Month(s)   6 Day(s)
Education Level:  	AFQT:  73
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  4.0 (1)	OTA:  4.00

Awards and Decorations (per DD 214):	

Periods of CONF:  

NJP:  
- 20050418:	Article  (UA from 20050318 – 20050417, 29 days)
	Awarded:  (to E-2)  Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  
- 20050418:	For Art 86 UA from 20050318 – 20050417 that led to NJP.

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON”
	  “GENERAL (UNDER 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 11, effective 29 April 2005 until 
15 June 2008, Article 1910-148, SEPARATION BY REASON OF HOMOSEXUAL CONDUCT.

B.  Public Law 111-321, signed 22 Dec 2010 (implemented 20 Sep 2011).

C.  Under Secretary of Defense (Personnel & Readiness) Memorandum (Repeal of Don’t Ask Don’t Tell), 20 Sep 2011.

D.  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.

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

Applicant’s Issues

1.	Applicant seeks a discharge upgrade and RE code change to reenlist in the U.S. Armed Forces.
2.	Applicant contends her discharge was inequitable as she did nothing wrong or illegal.

Decision

Date:  20110922		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  HOMOSEXUAL ADMISSION.

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  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) retention warning (18 Apr 2005) for 29 days of UA and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence, 18 Mar - 17 Apr 2005, 29 days).  On or about 6 Feb 2005, a Sailor submitted a complaint, followed by an official statement, that the Applicant and another female Sailor had been sleeping in the Applicant’s rack together (aboard the USS Enterprise) for several months.  After receiving the sworn statement, ship’s Master-at-Arms personnel proceeded to the Applicant’s berthing section and found the Applicant and the other Sailor sleeping together in the Applicant’s rack (behind the privacy curtain).  On 15 Mar 2005, the Applicant submitted a special request chit to her chain of command “requesting permission to be separated from the Naval Service due to homosexual behavior.”  On 26 May 2005, she followed up with a signed letter stating, “when I enlisted in the Navy, I knew there would be certain aspects of my personal life I would have to hide.  Prior to coming into the Navy, I had relationships with other females.  I put forth an honest effort to deny myself, and the chain of command of who I really am.  I honestly feel as though I can no longer keep to myself that I am gay.”  Based on the evidence available to the command, the Applicant was administratively processed for separation, which was mandatory per the Naval Military Personnel Manual (MILPERSMAN).  When notified of administrative separation processing using the  procedure on 26 May 2005, the Applicant elected to exercise her right to submit a written statement, but waived her rights to consult with a qualified counsel and request an administrative separation board.  The Applicant was separated from the Navy on 17 Jun 2005 with a General (Under Honorable Conditions) discharge due to Homosexual Admission.

:  (Nondecisional) The Applicant seeks a discharge upgrade and RE code change to reenlist in the U.S. Armed Forces.  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 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.

:  (Decisional) ()  .  The Applicant contends her discharge was inequitable as she did nothing wrong or illegal.  The Board conducted a detailed examination of the Applicant’s service records to determine whether her discharge met the pertinent standards for propriety and equity.  The records indicate the Applicant was in an unauthorized absence status for 29 consecutive days (18 Mar-17 Apr 2005) for which she received Commanding Officer’s NJP.  Additionally, sworn witness statements confirmed that the Applicant violated policy by sleeping in her shipboard rack (single-person) with another female, on diverse occasions, for several months.  The characterization of service awarded is a description of the total service provided during the member’s enlistment.  When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as Honorable.  A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive 

aspects of the member’s military record.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of the Naval Service, especially considering her job specialty rating and time in service, and falls short of what is required for an upgrade in the characterization of service to Honorable.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation process, the Board found   Moreover, pursuant to Under Secretary of Defense (Personnel & Readiness) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 Sep 2011, and new DOD policies, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain HOMOSEXUAL ADMISSION.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

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