ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20150217
Characterization of Service Received:   
Narrative Reason for Discharge:   HOMOSEXUAL CONDUCT ADMISSION
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	
	Reentry Code change to:   or 

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20000226 - 20000714  	Active:	
	USNR (DEP)	20001106 - 20001227  

Period of Service Under Review:

Date of Current Enlistment:  20001227	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20010629	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  93
Evaluation Marks:  NFIR

Awards and Decorations (per DD 214):	NONE

NJP:  

- 20010410:	Article 86 (Absence without leave; 20010319-20010406, 19 days)
	Awarded:     Suspended:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 20010409:	For the following deficiencies in your performance and/or conduct:  Violation of UCMJ Article 86 – Unauthorized Absence

Administrative Corrections to the Applicant’s DD 214

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

	  “”

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 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant seeks an upgrade to enhance employment opportunities.
2.	The Applicant seeks a change in her discharge in order to serve the country.
3.	The Applicant contends that youth and immaturity were contributing factors in her misconduct.
4.	The Applicant contends that she is not and has not ever been a homosexual.
5.	The Applicant contends that she only admitted to being a homosexual in order to avoid a compromising situation in which she alleges her married commanding officer was trying to date her and did not want to be eye candy for sailors in the Navy.

Decision

Date:  20150520		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SECRETARIAL AUTHORITY.
By a vote of  the Reenlistment Code shall  .

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  NAVPERS 1070/613 (Page 13) warning and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; 20010319-20010406, 19 days).  Based on the Applicant’s admission of homosexuality, which the commanding officer found to be credible, and the offense(s) committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant exercised her rights to consult with a qualified counsel and submit a written statement, but waived  right to request an administrative board. 

:  (Nondecisional) The Applicant seeks an upgrade to enhance employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Nondecisional) The Applicant seeks a change in her discharge in order to serve the country.  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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 that youth and immaturity were contributing factors in her misconduct.  While the Applicant may feel her youth and immaturity were the underlying causes of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends that she is not and has not ever been a homosexual.  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 her issue.  The Applicant submitted a marriage license signed by a Baptist Minister showing she married a man in February 2010.  The evidence of the record clearly shows that within a month of returning from her 19 day period of absence without leave and subsequent NJP, the Applicant provided her command with a written statement stating that she enlisted knowing she was a homosexual and that the stress of concealing her sexuality caused her period of absence without leave.  The Applicant further stated that she desired to initiate a relationship and practice her sexuality with another member of her command. She then stated that she wished to be discharged in order to do so freely.  The Applicant was notified of her command’s intent to separate her on 18 May 2001 due to her homosexual admission and listed her NJP for absence without leave as an aggravating factor in recommending a General (Under Honorable Conditions) discharge characterization.  The Applicant acknowledged her separations paperwork, consulted with counsel, submitted a written statement to the separations authority, and waived her right to appear before an administrative board.  The Applicant’s current statements about fraudulently claiming to be a homosexual in order to avoid further service do not overcome the government’s presumption of regularity in that at the time of discharge enough credible evidence existed for her discharge under existing policy.

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.  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 record of service contains one retention warning counseling and one NJP for a 19 day period of absence without leave.  Such a period of absence is considered a significant negative aspect of performance and conduct for an entry-level servicemember.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of her service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade to her characterization and re-entry code was not warranted.  

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.  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 Applicant was notified of only one reason for discharge - Homosexual Conduct (Admission).  In processing her discharge it was noted that an aggravating factor in the form of her 19 day period of absence without leave and associated nonjudicial punishment was involved.  However, the command chose to notify the Applicant for discharge solely based on Homosexual Conduct (Admission).  Accordingly, the NDRB determined that the narrative reason for separation will change to Secretarial Authority; 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.  Partial relief granted.

5:  (Decisional) ()  .  The Applicant contends that she only admitted to being a homosexual in order to avoid a compromising situation in which she alleges her married commanding officer was trying to date her and did not want to be eye candy for sailors in the Navy.  Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief.  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 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 remain GENERAL (UNDER HONORABLE CONDITIONS), but 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.  The assigned 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  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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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