Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: lois.rojas
Company: NCPB

Docket No. ND12-00172

ex-BMSA, USN

Current Discharge and Applicant’s Request

Application Received: 20111027
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214)  HOMOSEXUAL ACTS
Authority for Discharge: (per DD 214) MILPERSMAN 1910-148 [HOMOSEXUAL CONDUCT]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20050727 - 20050728  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20050729	Age at Enlistment:  33
Period of Enlistment:  4 Years  13 MONTHS Extension
Date of Discharge:  20090220	Highest Rank/Rate:  BMSN
Length of Service:  03 Year(s)   06  Month(s)   22 Day(s)
Education Level:  16	AFQT:  64
Evaluation Marks:	Performance:  3.3 (6)	Behavior:  3.6 (6)	OTA:  3.25

Awards and Decorations (per DD 214):	Pistol MM GCM NDSM GWOTSM SSDR OSR
Periods of UA/CONF:  NONE

NJP:  1
- 20090105:	Article 92 (Failure to obey an order or regulation) 
	Awarded: RIR (to E-2) FOP RESTR EPD   Suspended:  RESTR EPD (suspend 6 months)

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE

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 23, effective 16 June 2008 until 
14 May 2009, 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 (PR) 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 to increase employment opportunities.
2.	Applicant seeks a discharge upgrade to obtain veteran education benefits.
3.	Applicant contends he warrants a discharge upgrade based on recent legislation changes with regard to homosexual conduct in the U.S. Military.

Decision

Date:  20120223	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.

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 reflect one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation).  The record indicates the Applicant was subject to an investigation by the Naval Criminal Investigative Service (NCIS), which was completed on or about November 2008 (NCIS RA reports dated 13 Nov and 19 Nov 2008 referenced in administrative separation package).  After command receipt of the NCIS investigation reports, the Applicant was referred to Captain’s Mast (NJP) and found guilty of violating UCMJ Article 92.  Based on the information contained in the NCIS investigation reports and information presented at the NJP, the Applicant’s Commanding Officer administratively processed him for separation.  When notified of administrative separation processing for Homosexual Conduct (Acts) using the administrative board procedure on 12 Jan 2009, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, request an administrative separation board, and present evidence demonstrating that he did not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts.  In the Commanding Officer’s endorsement of the Applicant’s administrative separation package, he states “(The Applicant) is a young Sailor who has made poor choices.  An official NCIS investigation revealed that he was a willing participant in a homosexual relationship with another Sailor.  (The Applicant’s) acts are contrary to good order and discipline onboard USS Green Bay and are contrary to the standards of the United States Navy.  I recommend he be separated from the Naval Service with an Under Other Than Honorable characterization of service.”  On 5 Feb 2009, the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge due to Homosexual Conduct (Acts).  The Applicant was subsequently discharged from the Navy on 20 Feb 2009 as directed.

Issue 1:  (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2:  (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education 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.

Issue 3:  (Decisional) (Propriety/Equity)  PARTIAL RELIEF WARRANTED.  The Applicant contends he warrants a discharge upgrade based on recent legislation changes with regard to homosexual conduct in the U.S. military.  Reference (a), which was in effect at the time of the Applicant’s discharge, the NCIS investigation results, and the information and statements presented at Captain’s Mast regarding the Applicant’s homosexual conduct created a rebuttable presumption that he engaged in, or had the propensity to engage in, homosexual acts.  Additionally, the records indicate he specifically waived his right to submit 

evidence to rebut this presumption and also waived his right to request an administrative separation board prior to his discharge.  Normally, an inquiry is initiated following receipt of substantial evidence (indicating a service member had or was violating the Department of Defense policy on homosexual conduct in the military) to determine whether the information was credible.  Since the Applicant’s service records do not contain the evidence contained within the NCIS investigation reports or from the testimony presented at NJP, the NDRB could not review the specific circumstances regarding his homosexual conduct and determine whether the Applicant’s separation by reason of homosexual conduct (acts) met the pertinent standards for propriety and equity.  Accordingly, and with no evidence in the records to rebut the presumption of regularity prior to his discharge nor substantial, credible evidence submitted by the Applicant to the Board post-discharge to question this presumption, the NDRB found that the Applicant’s separation was proper and equitable per the orders and directives in effect at the time of his separation.  However, pursuant to Public Law 111-321 and in accordance with the guidance set forth in the Under Secretary of Defense (Personnel & Readiness) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 Sep 2011, the Board, after careful consideration of all the facts and circumstances surrounding the Applicant’s case, determined that the narrative reason for separation shall change to Secretarial Authority and the characterization of discharge shall change to General (Under Honorable Conditions).  Partial relief warranted.  Full relief to Honorable was not granted, because misconduct of a serious nature (violation of UCMJ Article 92) did occur, and this misconduct warranted discharge with a General (Under Honorable Conditions) characterization of service.  To have originally warranted an Under Other Than Honorable Conditions discharge for Homosexual Acts, the misconduct had to have been aggravated, which means that the misconduct occurred:

•	by using force, coercion, or intimidation;
•	with a person under age 16;
•	with a subordinate in circumstances that violate customary naval superior - subordinate relationship;
•	openly in public view;
•	for compensation;
•	aboard a naval vessel or aircraft; or 
•	in another location subject to naval control, under aggravating circumstances that adversely impact good order and discipline; or morale-comparable to the impact created by such activity aboard a vessel or aircraft.

Removing the homosexual component from the misconduct still leaves misconduct of a nature to warrant separation.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the administrative separation process, the Board found the discharge was proper and equitable at the time of discharge.  However, pursuant to Public Law 111-321 and in accordance with the guidance set forth in the Under Secretary of Defense (Personnel & Readiness) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 Sep 2011, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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

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