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NAVY | DRB | 1999_Navy | ND99-00859
Original file (ND99-00859.rtf) Auto-classification: Denied


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

ex-AEAN, USN
Docket No. ND99-00859

Applicant’s Request
The application for discharge review, received 990611, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a personal appearance hearing before a Traveling Panel closest to Cleveland, OH. The applicant did not designate a representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000331. 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/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority" should read: “MILPERSMAN 3630600 & CMPC WASH DC MSG 211933Z MAR 91” vice “CMPC WASH DC MSG 211933Z MAR 91”. The original DD Form 214 should be corrected or reissued as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. There were two individuals involved in my separation from the United States Navy.
One of the person's names is B_ B_. At the time of my separation, the gulf war was just starting to take shape. I was not permitted to deploy with my squadron V. S. 24. However B_ was allowed to go to the Kuwait border and serve his country. Subsequently the military after B_ returned from the war, gave him an honorable discharge after mentioning the allegation of homosexuality. The other individual, whose name I am not able to remember was not discharged, and was allowed to finish his term in the military. I was the only one separated under other than honorable conditions.

2. I mentioned previously that I was not permitted to deploy with my squadron. I was removed from my squadron, and placed at Naval Air Station Jacksonville Florida at a legal hold facility. Confidentiality was broken from the very start of my stay there at the legal hold facility. I remember the hearing the jokes that were made about my case thru the office doors. One of the petty officers whose name I am not able to recall, attempted to molest me inside the legal hold facility. He grabbed me from behind, and pressed his erected penis against my buttocks as I was mopping the deck. Because of stress, this incident, and the fact that I was being separated, when I so badly wanted to stay in the military. I fled from the military and went AWOL This was my way of escape from what was going on at that time. I was absent for seventeen days. Because I went AWOL, I was told by my attorney that this really complicated my case. My attorney said that I had a chance of being able to stay in the military, but now the board would definitely separate me from the Navy.

3. During the hearing, for my separation. The three lieutenants mentioned that I had signed a form in boot camp that stated that if the military would ever find marijuana in my system again that would be grounds for separation. See I popped positive for marijuana in boot camp, but was allowed to stay in the military as long as I went thru one hundred and eighty days of random drug screens. When I went AWOL from the military, during my separation from the military I started to use marijuana again. I feel that my inability to cope with the issues that I was going thru in my life at that time, drove me to using marijuana. Seventeen days went by and I returned to Naval Air Station Jacksonville Florida. I turned myself into the psychiatric department there at the hospital. I spent about a week there. The doctors wanted some urine for a urine test, so I provided them with a sample.
I feel that when the lieutenants brought up the fact that I had signed the form in boot camp at the hearing, they had found out that I popped positive to the urine test that I gave at the psychiatric department at the hospital on Naval Air Station Jacksonville, Florida- Subsequently this further helped the board to make the decision to separate me from the military.

4. During my hearing with the board of three lieutenants. They mentioned to me when was the last time you went to church. This really sunk in deep in the back of my mind. See I was raised in a Christian home and went to church most of my life, but really had never given my life to Christ. Well really none of that mattered because I was engaged in a homosexuality lifestyle. But by the time the spring of 1992 had come I was dealing with the issue of my homosexual lifestyle. I repented of this sinful lifestyle, the rest of my sin, and was baptized for the remission of my sins. I continued with counseling and remained in a local church. I am presently involved in a mens prayer group. I have a strong faith in the Lord Jesus Christ, and have been a born again Christian since 1995. By His mercies and His abounding grace I have been set free from the bondage of this lifestyle. I do not condone homosexuality, or fell it's an acceptable alternative.

5. When I went into the military it was the first time that I had been away from home. Being young I was prone to have some problems, from the different experiences that I encountered. I wanted hold heartedly to succeed in the Navy, and tried very hard to do so. I was a good example to all in boot camp, and made a strong attempt to succeed in helping others that needed more help with there trials. After I got out of boot camp I was guaranteed A school training in the field of aviation electrician. While I was in Millington, Tennessee at A school I completed the training, finishing third in my class. I picked orders to the V. S. Squadron 24 out of Cecilville, Florida. Along with these orders there was C school orders that went with the orders to Cecilville,. From Millington, Tennessee I went to Sandiego California for C school training. While I was in Sandiego I completed my training with a ninety eight percent over all grade. My evaluations went higher than they were at Millington, Tennessee. I made rate ever time that I was up to do so. When I got to Cecilville, Florida I was placed in the flight line group, and became Plane Captain in the shortest amount of time permitted. When it came time to go up for Petty Officer Third Class I made rate the first time that I took the Aviation Electrician Mate test. In my last evaluation, it said that I was a conscientious hard worker, cornerstone of peer group. Because of my separation I was never given the right to wear the Petty Officer Third Class rate symbol.
Please consider these facts when determining whether or not you will upgrade my service discharge. Upgrading my discharge to an general under honorable conditions would give me a better chance at acquiring employment with a reputable employer.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Character Reference letter from V_ G_, retired school teacher, dated Feb 4, 1999
Character Reference letter from Applicant's parents, dated Feb 8, 1999
Character Reference letter from D_ J_ H_, friend, dated Feb 3, 1999
Character Reference letter from D_ S. B_, friend, undated
Character Reference letter from W_ L. C_, Pulpit Minister, dated Feb 3, 1999
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     880818 - 880831  COG

 Period of Service Under Review :
Date of Enlistment: 880901               Date of Discharge: 910326

 Length of Service (years, months, days):

         Active: 02 06 26 (Doesn't exclude time lost)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rate: AEAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (1)     Behavior: 3.3 (2)                 OTA : 3.58

 Military Decorations: None

 Unit/Campaign/Service Awards: Navy "E" Ribbon, NDSM

Days of Unauthorized Absence: 20

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600 & CNMPC WASHDC MSG 211933Z MAR 91.

 Chronological Listing of Significant Service Events :

880914:  DARR: Service directed accession pipeline urinalysis testing, positive for marijuana abuse, recommend retention.
880918:  Counseling: Advised of deficiency (identified, through urinalysis testing, to be a drug abuse), acknowledged he would be placed on a drug urinalysis surveillance program and tested on a regular basis not to exceed 180 days from entry on active duty. Discharge warning issued.
890124:  NJP for violation of UCMJ, Article 121: larceny of a cassette tape from the Navy Exchange.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.

890124:  Retention Warning: Advised of deficiency (violation of Article 121 - larceny), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
890502:  NJP for violation of UCMJ, Article 116: riot or breach of peace - breach of peace at BEQ-436 by fighting on 22APR89; violation of UCMJ, Article 117: provoking speeches or gestures - wrongfully use provoking words "GET OFF THE F----- PHONE" on 22APR89.
         Award: Forfeiture of $163 per month for 1 month, restriction and extra duty for 7 days. No indication of appeal in the record.
900702:  NIS Report regarding possible homosexual behavior.

901024:  NIS Report concerning homosexuality allegations.

901214:  Placed on restriction in lieu of arrest at 1500 this date.

901214:  Unauthorized absence from NAS Jackonsville, FL, since 1600.

 901214:  Security Det, NAS Jacksonville, Fl: Complaint Report received at 1820 by phone. Synopsis: Threaten suicide phone call. Response: Reporting Official was dispatched and arrived approximately at 2110 to Bldg 585.
901219:  Report of Declaration of Desertion: Declared deserter 90DEC18 having been unauthorized absentee since 1600, 90DEC14 from NAS Jacksonville, FL. Possibly suicidal and not known to be armed or dangerous. Intentions to desert manifest.

910108:  Report of Return of Deserter: Surrendered to military authority at 0830 03JAN91 at NAS Jacksonsville FL. Retained onboard for disciplinary action.
910123:  Summary Court Martial 910123
 Charge I: for violation of UCMJ Article 86 - from 90DEC14 - 91JAN03
Charge II: violation of UCMJ Article 95- Escape from custody on 91JAN03.
Findings: Guilty
Sentence: CHL for 21 days
CA 910131: Sentence approved and ordered executed
910123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
910128:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910207:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense as evidenced by CO's NJP on 89JAN24 for VUCMJ Article 121 - larceny and for homosexuality as evidenced by engaging in, attempting to engage in or soliciting another to engage in homosexual acts, a SCM on 91JAN23 for VUCMJ Article 95 - escape from custody and misconduct due to a pattern of misconduct as evidenced by a SCM on 91JAN23, CO's NJP 89MAY02 and a CO's NJP on 89JAN24, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910221:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and for homosexuality as evidenced by engaging in, attempting to engage in or soliciting another to engage in homosexual acts. Commanding officer’s comments (verbatim): "I concur with the Administrative Discharge Board's findings reflected in subparagraph 1e above. Airman (Applicant) should be expeditiously separated from the Naval Service with an Other Than Honorable discharge for his continuous misconduct."

900130:  Letter of deficiency submitted from applicant’s counsel.

910321:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910326 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In the applicant’s issue 1 and 2, the Board found that this is not an issue which the Board can make a decision on.

In the applicant’s issue 3, the applicant states that the he “signed a form in boot camp that stated that the military would ever find marijuana in my system again that would be grounds for separation.” He further states that he used marijuana while in a UA status, and that “my inability to cope with the issues that I was going thru in my life at that time, drove me to using marijuana.” The Board found that the applicant had a pattern of misconduct including his two NJPs and a Summary Court martial. The applicant had very serious charges of larceny, UA, breach of peace, escaping from custody and homosexuality. The ADB took his entire service into account when they recommended separating him from the Naval service. The Board found no evidence that the ADB took into account his positive urinalysis while at the psychiatric hospital nor during boot camp. The applicant’s counsel submitted a letter of deficiency to CNMPC raising the same concerns to the Naval Military Personnel Command (NMPC). This was taken into account when they directed the applicant’s discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense. No relief will be granted based on this issue.

In the applicant’s issue 4, the applicant states that he does “not condone homosexuality” and has “repented of this sinful lifestyle.” The Board cannot alter history and what was evident at the time of the discharge was evidence that the applicant had engaged in, attempted to engage in or solicited another to engage in homosexual acts. No relief will be granted based on this issue.

In the applicant’s issue 5, the Board found that the applicant’s entire service record was taken into account and his service was not served honorably . The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. The applicant is reminded that there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and 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. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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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