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NAVY | DRB | 1999_Navy | ND99-00099
Original file (ND99-00099.rtf) Auto-classification: Denied


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

ex-AT3, USN
Docket No. ND99-00099

Applicant’s Request
The application for discharge review, received 981023, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any 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 found no impropriety, but found an inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change to: (GENERAL) UNDER HONORABLE CONDITIONS/HOMOSEXUAL CONDUCT ACTS, authority: MILPERSMAN, Article 3630400.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1. My Undesirable Discharge was enequitable because it was based on my sexuality and not my exceptional period of service, as my preformance evaluations and medal of good conduct and other achievements will show.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     930610 - 930921  COG

 Period of Service Under Review :
Date of Enlistment: 930922               Date of Discharge: 970416

 Length of Service (years, months, days):

         Active: 03 06 25
         Inactive: 00 00 00

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 76

 Highest Rate: AT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 4.00 (2)                OTA: 4.00 4.0 evals
 Performance: 4.00 (1)    Behavior: 5.00 (1)                OTA: 3.71 5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS)/HOMOSEXUAL CONDUCT ACTS, authority: MILPERSMAN, Article 3630400.

 Chronological Listing of Significant Service Events :

970127:  Applicant’s Voluntary Statement made to MA2 T_ J_ P_, concerning his homosexuality.

970203:  Applicant notified of intended recommendation for by reason of homosexuality as evidenced by his statement that he engaged in homosexual acts. Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.
970203:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

970205:  Commanding officer recommended discharge with type warranted by service record by reason of homosexual conduct and homosexual acts as evidenced by his statement that he had engaged in homosexual conduct during his enlistment. Commanding officer’s comments (verbatim): “AT3 (applicant) has stated that he is a homosexual and has requested administrative separation from the Naval Service. Enclosure (4) pertains. ATA (applicant) has admitted to actively engaging in homosexual conduct during his enlistment. AT3 (applicant) has stated that he has a propensity to continue to engage in homosexual acts and a homosexual marriage. Therefore, I recommend that AT3 (applicant) be separated as warranted by his service record and in accordance with current policy.

970327:  BUPERS directed the applicant's discharge with characterization as type warranted by service record by reason of homosexual conduct acts

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970416 with an under other than honorable conditions by reason of homosexual conduct acts (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 but not equitable (C and D).

In the applicant’s issue the Board found the discharge to be proper but inequitable. Applicant had an enviable record of performance during his tenure in the Navy. Therefore the characterization has been changed to (GENERAL) UNDER HONORABLE CONDITIONS with the reason remaining the same.

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C) Change 14, effective
03 Oct 96 until 11 Dec 97, 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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