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NAVY | DRB | 1999_Navy | ND99-01221
Original file (ND99-01221.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND99-01221

Applicant’s Request
The application for discharge review, received 990920, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing. The applicant listed a civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000530. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity, but no impropriety in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change to: HONORABLE/Homosexuality – stated he or she is a homosexual or bisexual, authority: MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)
1. Service characterization as general, under honorable conditions, is inequitable as it is not supported by the record; Discharge was accepted by servicemember believing it was characterized as "honorable."

Issues to be presented in brief in support of this application are here incorporated.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Unclassified COMNAVMILPERSMAN Message granted "Honorable" discharge based on local records
Reserve Officer's Training Corps Certificate dated 20 Mar 1987
Military Training Certificate dated 1 June 1988
Certificate of Achievement dated 28 April 1988
Certificate of Recognition, undated
High School Diploma, dated 3 June 1988
Character reference letter from Assistant Principal of Thomas Jefferson High School dated 12 December 1991
Character reference letter from Counselor, Louis W Fox Academic and Technical High School dated 6 January 1992
Character reference letter from 1SG (Retired), Senior Army Instructor dated 10 December 1991
Character reference letter from Major (Retired), Senior Army Instructor dated 16 December 1991
Memorandum dated 3 December 1991 re: excuse from work to attend training
Memorandum dated 3 December 1991 re: letter of recommendation
Character reference dated October 1999
Character reference from Camelot Volunteer Fire Department dated October 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 880826               Date of Discharge: 890915

 Length of Service (years, months, days):

         Active: 01 00 20
         Inactive: 00 00 00

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 28

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1)    Behavior: 3.60 (1)                OTA: 3.60

 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 HONORABLE CONDITIONS (GENERAL)/Homosexuality – stated he or she is a homosexual or bisexual, authority: MILPERSMAN, Article 3630400.

 Chronological Listing of Significant Service Events :

000000:  Applicant’s Voluntary Statement made to MACM(SW) R_ L. F_., concerning his homosexuality.

890907:  Applicant notified of intended recommendation for by reason of homosexuality as evidenced by his own admission. Applicant advised, that if separation is approved, the characterization of his service may be under honorable conditions (general).
890911:  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. First paragraph states: “I am being considered for an administrative separation from the naval service which could result in an other than honorable discharge....”

900112:  CNMPC directed reprocess for homosexuality by reason of admission of being a homosexual or bisexual. Reprocessing required because complete case was not received. Orig only received copies of LON and SOA. Case must include letter of transmittal signed by CO or acting CO and all supporting documentation. Also, LON was modified to show least favorable characterization of service as General. When revising LON/SOA only modify paras clearly marked for so doing....

900119:  Message from USS LYNDE MCCORMICK to CNMPC: Applicant discharged 15Sep90. “SNM did not object to discharge, was granted honorable discharge based on local records.”

Partial discharge package missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 890915 with under honorable conditions (general) 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 but inequitable (C and D).

In response to the applicant’s issue 1, the Board found that the CO sent a message stating that “SNM did not object to discharge, was granted honorable discharge based on local records.” Based on this message, the Board voted to upgrade the applicant’s discharge to HONORABLE.

 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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