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NAVY | DRB | 2000_Navy | ND00-00625
Original file (ND00-00625.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND00-00625

Applicant’s Request
The application for discharge review, received 000417, requested that the characterization of service on the discharge be changed to General/under Honorable conditions. The applicant requested a personal appearance hearing discharge review before a traveling panel closest to Ontario, CA. The applicant did not list any representative on the DD Form 293. In the acknowledge letter to the applicant, she was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC Area. The Naval Discharge Review Board (NDRB) also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001121. 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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1. I am requesting an upgrade to my re-code and if possible my separation code. I have a great desire to serve my country and at this time I am unable to pursue my plans to join the Army because of my current code. As you will be able to see from my supporting documents I am a hard worker who made an error in judgment. The following is an explanation of my service history the reason for my discharge from the Navy and why I believe I deserve consideration for upgrade.

2. In Nov of 1993, I joined the Army National Guard, went through boot camp and then returned home to wait for my AIT class to start. During the waiting period I received a conditional release from the Army NG and joined the Navy. I went active duty Navy Nov 1 994 completed boot camp and was assigned to the USS Coronado, San Diego CA.

3.       I arrived in San Diego approximately May of 1994 with my now ex-husband. Everything went well for a while then because of the continual sea duty, my unhappiness with my job, and the treatment I was receiving on the ship and other stresses my marriage started to fall apart. In March of 1995 approximately, I missed ship movement, and went to Captains Mass. The punishment levied upon me was a reduction in rate, ninety days restriction which although missing movement was my fault it all added to the stress and out of control feeling I was going through. Upon hearing my punishment I was irrational and I just wanted out. I re-acted without thinking and told the board members I was gay. The paperwork to discharge me for homosexuality began almost immediately. After I calmed down and was able to get myself together I tried to retract my statement. It led to no avail. I have never been in a compromising position; I have never engaged in or attempted to engage homosexual acts. if an investigation had been done it would have revealed this information.

4.       In May of 1995 I received notice of Administration Board Proposed Action which spelled out the reason for discharge. By this time rumors about my sexuality, my troubled marriage my finances, the fact no one in my chain was listening to me and other stresses had worn me out. I was tired and depressed and felt I needed to get away. Due to these feelings when they approached me with the proposed discharge I waived my right and left the Navy as something I was not.

5.       I made two mistakes (1) missing movement and (2) stating something I was not. I have grown up since then, I don't make decisions based on emotions of the moment anymore, I work hard, and I give back to my community through volunteer time. I don't want to be judge by my DD Fm 214, which is not reflective of the person that I am or have ever been.


I hope you take into consideration, it was a rash verbal statement I made in a time of emotional distress. Thank you for your time and consideration.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of Notification Procedures
Copy of Statement of Awareness
Copy of Employment Reference Letter
Copy of Basic Combat Training Certificate (USA)
Copy of Discharge Orders from Army
Copy of Report of Separation and Record of Service from Army
Copy of Honorable Discharge Certificate from Army National Guard
Copy of Letter of Commendation
Copy of Apprenticeship Training Certificate
Copy of Certificate of Appointment to E-2
Copy of GED
Copy of License and Certificate for Marriage
Copy of State of Legal Residence Certificate
Copy of Birth Certificate
Copy of Social Security Card
Copies of Service Related Documents (35pgs)


PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 941121               Date of Discharge: 960703

 Length of Service (years, months, days):

         Active: 00 09 16
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 9                         AFQT: 53

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 1.71

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 292

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950518:  NJP for violation of UCMJ, Article 86 (2 specs, total 9 days absence), violation of UCMJ Article 87: Missing Movement.
         Award: Forfeiture of $427.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
950531:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of homosexual conduct as evidenced by your voluntary statement that you are a homosexual which creates a rebuttable presumption that she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

950531:  Applicant advised of her 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.

950605:  Commanding Officer recommended discharge by reason of homosexual conduct as evidenced by her statement that she is a homosexual. Commanding Officer’s comments (verbatim): SR (Applicant) reported onboard on05MAR95. She is assigned to 2 nd Division and has been an above average performer. During non-judicial punishment conducted on 18MAY95 for her violation of UCMJ articles 86 and 87, she requested a closed mast and made a voluntary statement that she is a homosexual, which creates a rebuttable presumption that she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. SR (Applicant) did not rebut this presumption.

950712:  BUPERS directed Commanding Officer, USS CORONADO to reprocess the applicant for administrative separation for misconduct due to Commission of a serious offense as evidenced by VUCMJ Article 87 and homosexual conduct as evidenced by the member’s statement that he or she is a homosexual or bisexual or words to that effect which creates a rebuttable presumption that he or she engages in, attempts to engage in, has a propensity to engage in or intends to engage in homosexual acts.

950731:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense (Art. 85) and homosexual conduct as evidenced by your statement that you are a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts during your current enlistment.

xxxxxx:  Applicant advised of her 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.

950731:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense as evidenced by violation of UCMJ, Art. 87 and homosexual conduct as evidenced by members statement that she is a homosexual.

950825:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant declared a deserter on 950823 having been an unauthorized absentee since 950802 from USS CORONADO (AGF 11).

950829:  BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

960514:  Report of Return of Deserter. Applicant surrendered to military authorities on 960513 (1600) at NASNI. Returned to military control 960513 (1600). Retained onboard for disciplinary action/disposition.

960518:  NJP for violation of UCMJ, Article 85: Desertion.
         Award: Forfeiture of $437.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
960522:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense (Art. 85) and homosexual conduct as evidenced by your statement that you are a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts during your current enlistment.
960523:          Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
9606XX:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense (UCMJ, Art. 85) and misconduct due to homosexual conduct.

960624:  BUPERS 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 960703 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).

Issue 1. The Board advises the applicant that her request to change her reenlistment code is not within the jurisdiction of the NDRB. The applicant must petition the Board of Correction of Naval Records (BCNR) to change her reenlistment code issue. The applicant also states she has a great desire to serve her country and is unable to pursue her plans to join the Army. The Board is under no obligation to upgrade an applicant’s discharge for the purpose of giving him/her the opportunity to rejoin any branch of the military. The discharge was proper and equitable. Relief denied.

Issue 2. The Board determined this is a non-decisional issue that requires no further comment. Relief denied.

Issue 3. The NDRB can not determine whether the applicant was or was not a homosexual at the time of her discharge. The Board must rely on the evidence contained in the applicant’s record, and the supporting documentation provided, to judge whether the discharge was proper and equitable. The applicant’s record shows that she provided her Commanding Officer with a voluntary statement concerning her sexuality, waived all rights to an administrative board and did not object to the discharge. The applicant did not provide any documentation that would prove that her voluntary statement, concerning her sexuality, was not true at the time she made the statement. Additionally, the applicant was not discharged for homosexual admittance (code HRB), she was discharged for Commission of a serious offense (code HKQ), by evidence of violation of UCMJ Article 85 (desertion) and Article 87 (missing ship’s movement). The discharge was proper and equitable. Relief denied.

Issue 4. The Board determined this is a non-decisional issue, requiring no further comment. Relief denied.

Issue 5. The applicant states she is now a hard worker and gives back to the community through volunteer work. The applicant did not provide sufficient evidence to support her claim. The Board determined this issue is without merit. The discharge was proper and equitable. Relief denied.

The applicant remains eligible for a personal appearance hearing provided an application is received at the NDRB within fifteen years from the date of her discharge. Legal counsel is not required but advisable.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, 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 85, desertion or Article 87, missing ship’s movement, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

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
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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