ex-SH2, USN

Current Discharge and Applicant’s Request

Application Received: 20120803
Characterization of Service Received:   
Narrative Reason for Discharge:   HOMOSEXUAL ACT
Authority for Discharge:   MILPERSMAN 

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

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	19880122 - 19880420  	Active:		19880421 - 19930520  
					19930521 - 19990429  
Period of Service Under Review:
Date of Current Enlistment:  19990430	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20000906	Highest Rank/Rate:  SH1
Length of Service:   Year(s)     Month(s)   07 Day(s)
Education Level:  	AFQT:  31
Evaluation Marks:	Performance:  3.0 (2)	Behavior:  1.5 (2)	OTA:  2.72

Awards and Decorations (per DD 214):	Rifle  Pistol   (2)  (3)   (2)  (3)   (3)  (2)   (5)  (3) LoC (4) ASR AAM 

Periods of UA/CONF:  

NJP:  

- 19990809:	Article 80 (Attempts, 10 specifications) 
	Article  (General Article - Indecent assault, 10 specifications)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 	880421 UNTIL 990429”

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:	

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

Applicant’s Issues

1.	The Applicant contends the Navy had no reason to give him an Under Other Than Honorable Conditions discharge and never had any evidence to support the claim that he had engaged in homosexual conduct or had committed a serious offense.
2.	The Applicant contends his discharge was inequitable, because it yielded a punitive result.
3.	The Applicant contends his discharge was for multiple reasons and neither reason was justified.
4.	The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20130521		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  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 Board did complete 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   for  of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempts, 10 specifications) and Article 134 (General Article - Indecent assault, 10 specifications).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  On 25 August 1999, the Applicant appeared before an administrative separation board, which voted 3-0 that a preponderance of the evidence supported misconduct by the Applicant and recommended the Applicant should be administratively separated with a characterization of service of Under Other Than Honorable Conditions.  The Chief of Naval Personnel, however, set aside the board’s findings after determining that irregularities may have occurred and there may have been undue command influence.  On 21 April 2000, the Applicant submitted a Conditional Waiver Request to waive his right to an administrative board if a discharge characterization of General (Under Honorable Conditions) and a narrative reason for separation of Misconduct (Serious Offense) would be granted.  On 11 June 2000, the Applicant submitted a Waiver of Administrative Board Proceedings waiving his right to an administrative board and acknowledging that by waiving an administrative board, his discharge could result in an Under Other Than Honorable Conditions discharge.  The Applicant was ultimately discharged Under Other Than Honorable Conditions for Homosexual Act.

:  (Decisional) ()  .  The Applicant contends the Navy had no reason to give him an Under Other Than Honorable Conditions discharge and never had any evidence to support the claim that he had engaged in homosexual conduct or had committed a serious offense.  The Applicant received Honorable discharges for his first two enlistments from April 1988 to April 1999.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During his third enlistment, he was found guilty at NJP of violating UCMJ Articles 80 and 134 (10 specifications each).  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was innocent.   The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The Applicant was found guilty at NJP of 10 specifications of violating UCMJ Articles 80 and 134.  He then had an administrative board at which he presented his case and evidence to support his claims.  The board determined that the evidence against him was sufficient to support a determination of Misconduct (Serious Offense) and Homosexual Act and recommended 

separation Under Other Than Honorable Conditions.  The Chief of Naval Personnel, however, set aside these findings.  While awaiting a second administrative board, the Applicant submitted a request to waive his board.  He was then administratively separated Under Other Than Honorable Conditions for Homosexual Act.  The NDRB determined his discharge proceedings were proper and equitable, and he was afforded due process and all applicable rights.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable, because it yielded a punitive result.  Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial.  Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment.  As such, the Applicant’s contention that his discharge yielded a punitive result has no merit.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed serious offenses, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  Relief denied.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was for multiple reasons and neither reason was justified.  The Applicant contends that he should not have been notified for administrative separation for both Misconduct (Serious Offense) and Homosexual Conduct, because they arise from the same events and, therefore, violate Naval Military Personnel Manual (MILPERSMAN) Article 1910-210 where dual processing is intended to describe separate events.  The NDRB concurs with this contention and determined it would have been more appropriate to have notified the Applicant for either Misconduct (Serious Offense) or Homosexual Act.  The Applicant met the requirements for separation for Misconduct (Serious Offense) per MILPERSMAN Article 1910-142 after the findings of guilt for 10 specifications of violating UCMJ Articles 80 and 134 at NJP.  However, the Applicant did not specifically request that the NDRB change his narrative reason for separation to Misconduct (Serious Offense).  Since the Misconduct narrative could be construed as making the discharge more unfavorable, the NDRB determined not to change the narrative reason for separation.  Relief denied.

Issue 4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The NDRB considers 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.  The Applicant provided a personal statement, college transcripts, and diplomas for a Bachelor of Science and a Master of Business Administration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall  , the narrative reason for separation shall remain HOMOSEXUAL ACT.  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.

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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, effective 30 August 2000 until 24 January 2001, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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, Articles 80 and 134.  

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.

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