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NAVY | DRB | 1999_Navy | ND99-00023
Original file (ND99-00023.rtf) Auto-classification: Denied


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

ex-YN3, USN
Docket No. ND99-00023

Applicant’s Request
The application for discharge review, received 980929, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 990927. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MILPERSMAN, Article 3630400.

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks, should read: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 86AUG14 UNTIL 94MAY08.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1. Request this case be reviewed for fairness and equity. This case is referred to the Board for their usual careful and compassionate consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Statement from applicant dated 30 September 1997 (2 copies)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               860814 - 900805  HON
                  USN              900806 - 940508  HON
         Inactive: USNR (DEP)     860317 - 860813  COG

 Period of Service Under Review :
Date of Enlistment: 940509               Date of Discharge: 950807

 Length of Service (years, months, days):

         Active: 01 02 29
         Inactive: 00 00 00

 Age at Entry: 26                          Years Contracted: 2

 Education Level: 12                        AFQT: 33

 Highest Rate: YN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, OSR, CGSOSM, GCM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS/HOMOSEXUAL ACT, authority: MILPERSMAN, Article 3630400.

 Chronologica l Listing of Significant Service Events :

950120:  Applicant notified of intended recommendation for discharge, by reason of homosexual conduct as evidenced by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts. Applicant advised, that if separation is approved, the characterization of his service may be under Other Than Honorable conditions.
950120:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950331:  An Administrative Discharge Board determined, based on a preponderance of the evidence and by unanimous vote, that the applicant had committed a serious offense, violation of UCMJ, Article 134, indecent acts with another, homosexual conduct as evidenced by engaging in, attempting to engage in or soliciting another to engage in a homosexual act or acts. The Admin Board recommended separation and discharge General (under Honorable conditions).

950508:  Applicant was notified of intended recommendation for discharge, by reason of Commission of a Serious Offense as evidenced by assault consummated by a battery, indecent assault, indecent acts with another and homosexual conduct as evidenced by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts. Applicant advised, that if separation is approved, the characterization of his service may be under Other Than Honorable conditions.
950508:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950508:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed homosexual acts and that such acts warranted separation, and recommended discharge General (under Honorable conditions).

950517:  Applicant’s counsel submitted a Letter of Deficiency stating, processing members cannot be used as a smokescreen to discharge homosexuals under Other Than Honorable conditions. The Admin Board found the applicant guilty of homosexual conduct and additionally processed him for indecent acts, for which he was found guilty. The counsel claims the indecent act was the same conduct as the homosexual act.
950608:  Commanding officer recommended discharge with General (under Honorable conditions) by reason of Commission of a Serious Offense as evidenced by assault consummated by a battery, indecent assault, indecent acts with another and homosexual conduct as evidenced by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts.

950721:  BUPERS directed the applicant's discharge General (under Honorable conditions) by reason of homosexuality.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 950807 with a General (under Honorable conditions) by reason of homosexuality – stated he is a homosexual (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In the applicant’s issue 1, the Board determined this is not an issue. The applicant’s record was reviewed to determine if his discharge was proper and equitable and has determined that it was proper and equitable. Therefore, relief is denied.


Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 Jul 94 until 02 Oct 96, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXUAL CONDUCT.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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