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NAVY | DRB | 2000_Navy | ND00-00843
Original file (ND00-00843.rtf) Auto-classification: Denied


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


ex-FR, USN
Docket No. ND00-00843

Applicant’s Request
The application for discharge review, received 000626, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed the CT Department of Veterans Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010125. 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/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority: MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues (verbatim)
1. I am now a heterosexual and have been for the last 9 years. My sexual proclivities were induced by others while I was in service. In affect I was a victim. Once in civilian life I straightened out. If I can get a discharge upgrade I wish to reenter the military.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Character reference dated May 11, 2000
 Character reference
 Character reference dated May 8, 2000
 Character reference dated May 10, 2000


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: 890803               Date of Discharge: 891214

 Length of Service (years, months, days):
         Active: 00 04 12
          Inactive: None
Age at Entry: 22                          Years Contracted: Unknown

 Education Level: Unknown                  AFQT: Unknown
Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA
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 OTHER THAN HONORABLE CONDITIONS/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority: MILPERSMAN, Article 3630400.
Chronological Listing of Significant Service Events :

890925:  NJP for violation of UCMJ, Article 125: Commit sodomy with a seaman recruit on 5Aug89.
         Award: Forfeiture of $323.00 per month for 1 month, restriction for 30 days and extra duty for 15 days. No indication in the record of appeal.

891025:  Applicant notified of intended recommendation for by reason of homosexuality as evidenced by his engaging in homosexual acts. Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.
891025:  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.
891114:  Commanding officer recommended discharge under other than honorable conditions by reason of homosexuality as evidenced by his engaging in, attempting to engage in, or soliciting another to engage in homosexual act or acts.
891203:  CNMPC directed the applicant's discharge with an under other than honorable conditions by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 891214 with an under other than honorable conditions by reason of homosexual conduct (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 response to the applicant’s issue, the Board found that the applicant admitted to performing homosexual acts on more than one occasion and also admitted being the individual who initiated the act. The applicant has not submitted any evidence to the Board which would show that the applicant has changed his sexual orientation. The Board finds no reason to change the characterization of the applicant’s discharge. Relief denied.
The following is provided for the applicant’s edification. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D). The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.

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 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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