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

Docket No. ND12-00302

ex-GSM2, USN

Current Discharge and Applicant’s Request

Application Received: 20111128
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) HOMOSEXUAL ADMISSION
Authority for Discharge: (per DD 214) MILPERSMAN 1910-148 [HOMOSEXUAL CONDUCT]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	EXPIRATION OF TERM OF SERVICE

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19980716 - 19980826  ELS (Med)	
	USNR (DEP)	19990112 - 19990210  COG 	Active:	USN  19990211 - 20030209 HON

Period of Service Under Review:
Date of Current Enlistment:  20030210	Age at Enlistment:  22
Period of Enlistment:  6 Years  NO Extension
Date of Discharge:  20050727	Highest Rank/Rate:  GSM2
Length of Service:  02 Year(s)   05  Month(s)   17 Day(s)
Education Level:  12	AFQT:  89
Evaluation Marks:	Performance:  3.0 (3)	Behavior:  3.6 (3)	OTA:  3.15

Awards and Decorations (per DD 214):	GCM, AFEM, OSR, SSDR (2), GWOTEM, NAVY "E", NDSM

Periods of UA/CONF:  NONE

NJP:  1

- 20041010:	Article 92 (Failure to obey order or regulation, dereliction in the performance of duties) 
	Awarded: RIR FOP RESTR  Suspended:  RIR

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 11, effective 29 April 2005 until 
15 June 2008, 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 (PR) Memorandum (Repeal of Don’t Ask Don’t Tell), 20 Sep 2011. 

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

Applicant’s Issues

1.  The Applicant seeks an upgrade and a change to his narrative reason for separation due to 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 5-0 the Characterization shall change to HONORABLE.
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.
By a vote of 4-1 the Reentry Code shall change to RE-1.

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 Applicant identified one decisional issue to the NDRB related to the equity and propriety of his discharge.  In addition, 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 violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation).  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, however, the Command was recommending separation with a General (Under Honorable Conditions) characterization of service.  The Applicant acknowledged his understanding of the notification of separation proceedings and his rights therein; he elected to waive the right to consult with a qualified legal defense counsel and request an administrative board, but exercised his right to submit a written statement to the Separation Authority for his consideration.

Issue 1:  (Decisional Issue) (Propriety/Equity)  PARTIAL RELIEF WARRANTED.  The Applicant seeks an upgrade and a change to his narrative reason for separation to Expiration of Term of Service in light of the repeal of the “Don’t Ask, Don’t Tell” policy, contending that his discharge was based on an isolated incident in 49 months of honorable service and the admission of his sexual orientation.  The Applicant received a General (Under Honorable Conditions) characterization of his service at discharge pursuant to Homosexual Admission.  In accordance with the Naval Military Personnel Manual (MILPERSMAN), (NAVPERS 15560C), Change 11, effective 29 April 2005 until 15 June 2008, Article 1910-148, SEPARATION BY REASON OF HOMOSEXUAL CONDUCT, which was in effect at the time of the Applicant’s discharge, the Applicant’s in-service statement to his chain-of-command that he was a homosexual and intended to engage in homosexual relationships created a rebuttable presumption that he engaged in, or had the propensity to engage in, homosexual acts.  Having sought legal counsel, the Applicant chose not to challenge or to rebut this presumption.  Based on the statement made by the Applicant, his decision not to rebut any presumptions thereafter, and the commanding officer’s belief that the Applicant’s statements were credible, the Applicant was processed administratively for involuntary separation and was assigned a corresponding reentry code of RE-4.  At the time of discharge, processing for separation was mandatory in accordance with the MILPERSMAN and Department of Defense policy.  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 Admission was proper and equitable at the time it was issued.

Characterization of Service: The Applicant completed his first enlistment period with an Honorable characterization for that period of service.  However, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period.  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 NJP surrounding the loss of crew-served weapon ammunition while forward deployed.  Given the comments of the commanding officer who exercised NJP authority over the Applicant, coupled with the absence of any notification for discharge pursuant to misconduct, 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 prior to the Applicant’s sexual orientation admission, the NDRB determined the quality of the Applicant’s service met the standards of accepted 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 “Don’t Ask, Don’t Tell,” service discharge review boards should normally consider granting requests to change the narrative reason for discharge wherein Homosexual Admission was the only basis for discharge and no other aggravating factors were involved.  This memorandum further directs that the narrative reason for separation should normally change to Secretarial Authority with a corresponding Separation Code designator (SPD code).  The record of service reflects that, at the time of discharge, the only reason specified for discharge was Homosexual Admission and that no aggravating factors were involved.  Given the comments of the commanding officer, coupled with the absence of any notification for discharge pursuant to misconduct, the NDRB determined that Homosexual Admission without any aggravating factors was the only basis for discharge.  Accordingly, the NDRB determined that relief in the form of a change to the narrative reason for discharge is warranted.  The Applicant seeks a change to his narrative reason for discharge to Expiration of Term of Service; as the Applicant did not complete his term of service, this would not be a proper reflection of the reason for discharge.  Since there is no other narrative reason for separation that accurately describes the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority in accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) policy memorandum regarding the repeal of the “Don’t Ask, Don’t Tell” law.  Additionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MILPERSMAN 1910-164) with the corresponding Separation Code Designator of JFF.  Partial relief provided.

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.  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).  As specified in the service record, the Applicant received an RE-4 reentry code due to early termination of his service for Homosexual Admission.  The Applicant’s service record documents faithful service over two enlistment periods with only one incident of minor misconduct in the current enlistment.  Given the comments of the commanding officer, coupled with the Applicant’s qualifications and service as a formal instructor in his rating, his recommendation for promotion to First Class Petty Officer following his misconduct of record, and his overall trait average of 3.15 with a behavior average of 3.6 during this period of enlistment, the NDRB determined that the record of service would clearly warrant a recommendation for retention had the Applicant not been involuntarily separated for his Homosexual Admission.  As such, in accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum, the NDRB determined that the Applicant’s reentry code shall change to RE-1.

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 the corresponding SPD code of JFF, the authority for discharge shall change to MILPERSMAN 1910-164, and the reentry code shall change to RE-1.  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. 

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 reentry code.  Only the BCNR can make changes to reentry 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