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NAVY | DRB | 1999_Navy | ND99-00612
Original file (ND99-00612.rtf) Auto-classification: Denied


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

ex-YN3, USN
Docket No. ND99-00612

Applicant’s Request
The application for discharge review, received 990331, 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 000110. 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 ADMISSION , authority: MILPERSMAN, Article 1910-148.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION
Issues (verbatim)
1. My discharge was inequitable because it was based on one isolated incident in 28 months of military service with no other adverse action. What I had done had only been done once while on active duty. I did not intend for what happened to happen.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from applicant (2)
Letter of Appreciation (2)
Junior Sailor of the Quarter
Letter of Commendation (3)
Ten pages from applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               890619 - 960815  HON
         Inactive: USNR (DEP)     880728 - 890619  COG
                                            
Period of Service Under Review :
Date of Enlistment: 890619               Date of Discharge: 980527

 Length of Service (years, months, days):

         Active: 07 06 04
         Inactive: 03 03 27

 Age at Entry: 18                          Years Contracted: 4 (14 month ext.)

 Education Level: 12                        AFQT: 30

 Highest Rate: YN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 3.29

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, SWASM, Navy”E”, GCM(2nd), OSSR

 Days of Unauthorized Absence: 17

Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS) /HOMOSEXUAL ADMISSION, authority: MILPERSMAN, Article 1910-148.

 Chronological Listing of Significant Service Events :

980518:  NJP for violation of UCMJ, Article 86: unauthorized absence from on or about 980316 until on or about 980402.
         Award: Forfeiture of $716.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-4. No indication in the record of appeal.

980518:  Retention Warning: Advised of deficiency (unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
980522:  Applicant’s Voluntary Statement made to his Division Officer and LPO concerning his homosexuality.

980523:  Applicant notified of intended recommendation for administrative separation by reason of homosexuality as evidenced by applicant's statement that he admitted to being a homosexual or bisexual and 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.
980524:  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.

980526:  Commanding officer recommended discharge with type warranted by service record by reason of homosexuality as evidenced by his statement that he had engaged in homosexual acts. Commanding officer’s comments (verbatim): “I recommend YN3_____(applicant) be administratively discharged from the naval service by reason of homosexual conduct as evidenced by USS KITTY HAWK (CV 63) Preliminary Investigation of 24 May 1998, for his statement that he is a homosexual or bisexual, and that he engaged in homosexual acts after entering the Navy. YN3 ____(applicant) admitted that he has a propensity to engage in and intends to engage in homosexual acts in the future. On 22 May 1998, YN3 _____(applicant) made an unsolicited, voluntary disclosure to his leading petty officer and his division officer that he had committed a homosexual act while on active duty.

980527:  CNMPC directed the applicant's discharge with characterization as type warranted by service record by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 980527 with a general (under honorable conditions) by reason of homosexuality - homosexual acts and homosexual admission (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 issue 1, the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated incident". The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 31 Aug 98, Article 1910-148 (previously 3630400), Separation 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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