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NAVY | DRB | 1999_Navy | ND99-01070
Original file (ND99-01070.rtf) Auto-classification: Denied


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

ex-MM3, USN
Docket No. ND99-01070

Applicant’s Request
The application for discharge review, received 990805, 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 000420. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned impropriety in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change. The discharge shall change to: HONORABLE /HOMOSEXUAL ADMISSION, authority: MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.


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

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     930719 - 940705  COG

 Period of Service Under Review :
Date of Enlistment: 940706               Date of Discharge: 960502

 Length of Service (years, months, days):

         Active: 01 09 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 90

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 3.40 (2)                OTA: 2.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

960226:  Applicant’s Voluntary Statement concerning his homosexuality: "I have come to the conclusion that the best thing for me, at this point in my life, is to openly admit my homosexual tendencies. This is because of the stress from hiding my sexuality and obscuring my activities, such as going to clubs. The stress has been damaging to my health by causing high blood pressure and all that high blood pressure causes.

960304:  Applicant notified of intended recommendation for by reason of homosexuality as evidenced by applicant's statement that he admitted to being a homosexual or bisexual. Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.
960304:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights .

960318:  Commanding officer recommended discharge with a honorable by reason of homosexuality as evidenced by applicant's statement that he admitted to being a homosexual. Commanding officer’s comments (verbatim): MM3____(applicant) is recommended for immediate separation by reason of homosexual conduct as evidenced by his statement that he is a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that he engages in, attempts to engage in, has the propensity to engage in, or intends to engage in homosexual acts. His discharge should be characterized as honorable. MM3___(applicant) has no potential for further service in the United States Navy.

960327:  BUPERS 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 960502 with a general (under honorable conditions) by reason of homosexuality – 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 but the characterization of the discharge was improper. (C and D).

The applicant introduced no decisional issues for consideration by the Board. After reviewing the applicant’s service record, the Board determined that the applicant should have received an Honorable discharge as type warranted by service record. Relief granted.

 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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