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NAVY | DRB | 1999_Navy | ND99-00561
Original file (ND99-00561.rtf) Auto-classification: Denied


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

ex-MT3, USN
Docket No. ND99-00561

Applicant’s Request
The application for discharge review, received 990315, 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 000104. 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: UNDER OTHER THAN HONORABLE CONDITIONS/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority: MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1. This discharge was inequitable because it was based on one isolated incident in 39 months of service with no other adverse actions.

 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: USN               840521 - 860921  HON
         Inactive: USNR (DEP)     831210 - 840520  COG

 Period of Service Under Review :
Date of Enlistment: 860922               Date of Discharge: 870825

 Length of Service (years, months, days):

         Active: 00 11 04
         Inactive: 00 05 11

 Age at Entry: 20                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 66

 Highest Rate: MT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 1.85 (2)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority: MILPERSMAN, Article 3630400.

 Chronological Listing of Significant Service Events :

870608:  Retention Warning: Advised of deficiency (not meeting weight/bodyfat requirements), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
870702:  Applicant’s Voluntary Statement made to LT B_____, concerning his homosexuality.
870706:  NJP for violation of UCMJ, Article 125: Sodomy.
         Award: Forfeiture of $530.00 per month for 2 months, restriction for 60 days, reduction to E-4. No indication in the record of appeal.

870714:  Applicant notified of intended recommendation for by reason of commission of a serious offense as evidenced by violation of UCMJ, Article 125 (Sodomy) and 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.
870714:  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.

870716:  Commanding officer recommended discharge with under other than honorable conditions by reason of homosexuality as evidenced by engaging, or soliciting another to engage in a homosexual act.

870816:  CNMPC directed the applicant's discharge with characterization of other than honorable by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870825 with an other than honorable by reason of homosexual conduct – [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 found that the applicant admitted to being a homosexual and made a voluntary statement admitting to an act of sodomy. The applicant’s case was aggravated by the fact that he was convicted at non-judicial punishment of sodomy, which is a court martiable offense according to the UCMJ. Although this may have been one incident, the Board finds that it was proper and equitable.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), 15 June 1987 until
14 Aug 91, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXUALITY.

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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