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

Docket No. ND12-00187

ex-EOCN, USN

Current Discharge and Applicant’s Request

Application Received: 20111101
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) HOMOSEXUAL ACT
Authority for Discharge: (per DD 214) MILPERSMAN 1910-148 [HOMOSEXUAL CONDUCT]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	REQUESTED, BUT NOT SPECIFIED
	Reentry Code change to:	REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19991012 - 20000730  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20000731	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  12 MONTHS Extension
Date of Discharge:  20020307	Highest Rank/Rate:  EOCN
Length of Service:  01 Year(s)   07  Month(s)   07 Day(s)
Education Level:  12	AFQT:  63
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  3.0 (1)	OTA:  3.67

Awards and Decorations (per DD 214):	NMCAM

Periods of UA/CONF:  NONE

NJP:  1

- 20010201:	Article 92 (Failure to obey order or regulation, 3 specifications - specifics not found in record)
	Awarded: RESTR EPD FOP  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

- 20010201:	For failure to obey order or regulation.

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:	☒

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

Applicant’s Issues

1.  The Applicant seeks an upgrade to Honorable and changes to his narrative reason for separation and reentry code due to the repeal of the “Don’t Ask, Don’t Tell” policy.

Decision

Date:  20120523	        DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 3-2 the Characterization shall change to HONORABLE.
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.
By a vote of 5-0 the Reentry Code shall remain RE-4.

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 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.  The NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the discharge action met the pertinent standards of equity and propriety.  The 
Applicant’s record of service documents one nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, 3 specifications).  The Applicant was notified of separation for homosexual conduct as evidenced by his engaging in, attempting to engage in, or soliciting another to engage in, a homosexual act.  The Naval Criminal Investigative Service (NCIS) investigated the alleged homosexual act, which occurred on base in a naval barracks, because it was originally alleged to have been a sexual assault.  Upon investigation, the allegation of sexual assault was dropped as it was determined to have been a consensual act.  When notified of administrative separation processing using the board notification procedure, the Applicant was advised that the least favorable characterization of service warranted at discharge was Under Other Than Honorable Conditions.  He acknowledged his understanding of the notification of separation proceedings and his rights therein; he elected to exercise his right to consult with a qualified legal counsel, elected to present his case for retention to an administrative discharge hearing board of members, and submitted a statement to the Separation Authority for his consideration.

Issue 1:  (Decisional Issue) (Propriety/Equity)  PARTIAL RELIEF WARRANTED.  The Applicant seeks an upgrade and changes to his narrative reason for separation and reentry code due to the repeal of the “Don’t Ask, Don’t Tell” policy.  The Applicant received a General (Under Honorable Conditions) characterization of service at discharge and involuntary separation pursuant to Homosexual Conduct (Act).  The Applicant’s sexual conduct was investigated after another service member lodged a report of sexual assault.  In the course of the investigation and the administrative board hearing, it was determined that a consensual homosexual act did occur between the Applicant and another member aboard a naval installation in the barracks.  The Applicant testified that this sexual misconduct was a one-time act, that he was not homosexual, nor did he engage in a homosexual lifestyle, that he did not have a propensity to engage in further homosexual conduct, and, finally, that he be retained.  Having testified that this was a one-time act and that he did not have a propensity to engage in further homosexual conduct, the government bore the burden to rebut the testimony of record and determine that a propensity did exist.  By a vote of 3-0, the board members found a preponderance of the evidence supported a determination that a homosexual act did occur as stated in the discharge notification.  Furthermore, the board determined, by a vote of 3-0, that the Applicant should not be retained; in making these recommendations, the board determined that the Applicant had engaged in a homosexual act.  Additionally, the board determined that, based on the nature and circumstances of the Applicant’s statement, coupled with the testimony of others in regards to the Applicant’s homosexual act, a propensity for further homosexual conduct did exist.  However, given the positive testimony of members of the command regarding the Applicant’s performance, the board recommended, by a vote of 3-0, that the discharge characterization should be General (Under Honorable Conditions).  The local command concurred with the findings of the administrative hearing board and forwarded the separation recommendation to the Commander, Navy Personnel Command for a final determination.  Commander, Navy Personnel Command reviewed the documentation of record and concurred with the findings, directing the Applicant’s discharge for Homosexual Act with a General (Under Honorable Conditions) characterization of his service and a reentry code of RE-4.  At the time of discharge, processing for separation was mandatory in accordance with the Naval Military Personnel Manual (MILPERSMAN) and Department of Defense policy under the “Don’t Ask, Don’t Tell” law.  Given the detailed documents of record, the Applicant’s personal statement, and the commanding officer’s statement in the administrative separation endorsement, the NDRB determined that the Applicant’s separation by reason of Homosexual Conduct (Act), in accordance with Article 1910-148 of the MILPERSMAN, was proper and equitable at the time it was issued.

Characterization of Service: Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  The Applicant’s service record reflected one isolated NJP surrounding underage drinking in the barracks and a consensual homosexual act.  Given the comments of the Division Officer and Master Chief who testified on behalf of the Applicant, his winning the Bluejacket of the Year award, and the awarding of a Navy and Marine Corps Achievement Medal early in his enlistment, coupled with his post-service efforts and the unique circumstances of this case, the NDRB determined this incident to be an isolated incident of minor misconduct and not reflective of the Applicant’s overall performance of duties or conduct.  Based on the evidence of record, and in consideration of the statements from the chain of command regarding the Applicant’s performance and conduct, coupled with the fact that no reason for discharge was contemplated by the command other than the homosexual act itself, the NDRB, by a vote of 3-2, determined the quality of the Applicant’s service met the standards of acceptable conduct and performance of duty for military personnel.  As such, it is appropriate to characterize that service under Honorable conditions.  Relief, as requested, is granted.

Narrative Reason for Discharge: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum regarding the repeal of the “Don’t Ask, Don’t Tell” law, service discharge review boards should normally grant requests to change the narrative reason for discharge wherein Homosexual Conduct was the only basis for discharge, and there are no aggravating factors.  This memorandum further directs that the narrative reason for separation should normally then be changed to Secretarial Authority with a corresponding Separation Code designator (SPD code) of JFF.  The record of service reflects that, at the time of discharge, there was no other reason for discharge other than the homosexual act, but that one aggravating factor was involved - that the consensual homosexual act did occur aboard a Naval facility.  For the consensual act, the Applicant received NJP for violation of the barracks regulations.  In reviewing the discharge in light of the repeal of the “Don’t Ask, Don’t Tell” policy, the NDRB determined that the misconduct of record would not have required mandatory processing for separation, if it had been a consensual, heterosexual act at the time of the discharge.  It was a violation of Article 92, but as a first-time offense, might not have led to processing for separation, given the Applicant’s stellar record of service and chain-of-command recommendations.  Accordingly, by a vote of 5-0, the NDRB determined that relief in the form of a change to the narrative reason for discharge to Secretarial Authority, as requested, shall be granted; additionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MILPERSMAN 1910-164) with a corresponding Separation Code designator of JFF.  Relief granted.

Reentry Code: In light of the repeal of the “Don’t Ask, Don’t Tell” law, the NDRB conducted a review to determine if any change was warranted to the reentry code.  In accordance with the Under Secretary of Defense (P&R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 September 2011, service review boards should normally grant requests to change the reentry code to an immediately-eligible-to-reenter category if the discharge and corresponding reentry code was: (1) based solely on DADT or a similar policy in place prior to enactment of DADT; and (2), there were no aggravating factors in the record, such as misconduct.  As authorized by the Assistant Secretary of the Navy (Manpower & Reserve Affairs), the NDRB may change reentry codes as set forth in the USD (P&R) memorandum dated 20 September 2011.  The USD (P&R) policy memorandum stated that, if applicable, the new RE code should be RE-1J, however, this is an Air Force specific re-entry code.  In accordance with the guidance and intent of the policy memorandum, the applicable U.S. Navy reentry code would be RE-1 (eligible for reenlistment).  The Applicant received an RE-4 reentry code due to early termination of his service for Homosexual Conduct (Act).  The Applicant’s service record documents faithful service with one nonjudicial punishment for misconduct.  Though the NDRB found the Applicant’s service warranted characterization as Honorable, the NDRB also determined that the misconduct of record was still misconduct and would have rendered the Applicant to be not recommended for retention or reenlistment.  As such, having considered the guidance as set forth in the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum, the NDRB determined that relief is not warranted.  The Applicant’s reentry code shall remain RE-4 (not recommended for reenlistment).  Relief denied.

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 NDRB 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 (P&R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 Sep 2011, the awarded characterization of service shall change to HONORABLE, the narrative reason for separation shall change to SECRETARIAL AUTHORITY with a corresponding SPD code of JFF, and the authority for discharge shall change to MILPERSMAN 1910-164; however, the reentry code shall remain RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge.  The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, effective 24 August 2000 until 14 May 2002, 
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.

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

D.  Under Secretary of Defense (P&R) Memorandum (Repeal of Don’t Ask Don’t Tell), 20 Sep 2011. 

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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