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NAVY | DRB | 2001_Navy | ND01-00211
Original file (ND01-00211.rtf) Auto-classification: Denied


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

ex-STS3, USN
Docket No. ND01-00211

Applicant’s Request
The application for discharge review, received 001211, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to for the good of the service. The applicant requested a personal appearance discharge review. The applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 011002. After a thorough review of the testimony, 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 and reason for the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Whether as a matter of propriety a discharge is correct based upon the commission of a serious offense and based on admission of the applicant that he was a bisexual in the circumstances?

2. Whether as a matter of equity a discharge should be changed given the circumstances presented and given the applicant’s post discharge conduct?

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Memorandum in support of application (9 pages)
Copy of discharge certificate dated December 12, 1985
Copy of DD Form 214
Forty-eight pages from applicant's service/medical records
Copy of applicant Equivalency Diploma dated April 17, 1986
Copy of applicant's birth certificate
Copy of a negative criminal record check dated August 21, 2000
Nine family pictures

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     810904 - 811012  COG

 Period of Service Under Review :
Date of Enlistment: 811013               Date of Discharge: 851212

 Length of Service (years, months, days):

         Active: 04 02 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 10 GED           AFQT: 68

 Highest Rate: STS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (6)    Behavior: 3.33 (6)                OTA: 3.43

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR with 2 Bronze Stars, BER (2), NEM

 Days of Unauthorized Absence: 5

 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.

 Chronological Listing of Significant Service Events :

831128:  Applicant to unauthorized absence 0730, 28Nov83

 831203:  Applicant from unauthorized absence 1645, 3Dec83 (5 days/surrendered).
831216:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 87: Missing movement.
         Award: Extra duty for 7 days, oral admonition. No indication of appeal in the record.
850913:  Applicant arrested by Norwich CT police for disorderly conduct, third degree assault on his wife and threatening his wife. Case subsequently referred to family court and member placed on 6 month probation.
851002:  Psychiatric evaluation: Impression: Antisocial (sociopathic) personality disorder, EPTE.

851016:  Retention Warning: Advised of deficiency (Alcohol abuse, poor impulse control, antisocial personality.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

851021:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality as evidenced by members admission that he is bisexual.
851021:  Applicant advised of his rights and having consulted 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 and to submit a statement.
851022:  Commanding officer recommended discharge under honorable conditions by reason of homosexuality due to admission of bisexuality.

851109:  CNMPC directed command to reprocess applicant for administrative discharge to include all applicable reasons including misconduct due to commission of a serious offense and homosexuality.
851112:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality as evidenced by members admission that he is bisexual and misconduct due to the commission of a serious offense.
851114:  Applicant advised of his rights and having consulted 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 and to submit a statement.
851114:  Applicant's statements found in service record.

 851115:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): Following his arrest by civilian authorities for assaulting his wife, Petty Officer (applicant) was referred to the Family Advocacy representative of the Naval Hospital, Groton, CT. Because of his closed and defensive nature, he was evaluated as not suitable for the Family Advocacy Program and was referred to a psychiatrist. During the psychiatric evaluation he stated that the reason for the incident with his wife was his admission to her that he was bisexual.
         Petty Officer (applicant) has stated that his bisexual behavior has occurred since coming on active duty. He has been unwilling to discuss specific names or dates. I recommend Petty Officer (applicant) for separation by reason of homosexuality as evidenced by admission of being a bisexual and misconduct due to commission of a serious offense.

851204:  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 851212 under other than honorable conditions for misconduct due to commission of a serious offense (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).

 The applicant’s first issue states: “Whether as a matter of propriety a discharge is correct based upon the commission of a serious offense and based on admission of the applicant that he was a bisexual in the circumstances?” The Board found no impropriety in the discharge proceedings. The applicant was dual processed for his admitted homosexuality and commission of a serious offense (Violation of UCMJ Article 87- Missing Ship’s Movement). The applicant was notified the least favorable characterization was Other Than Honorable and exercised his right to consult with counsel. The Board found no impropriety in the applicant’s discharge and found the applicant was afforded his due process rights throughout the proceedings. Relief based on the propriety of the discharge is not warranted.

 The applicant’s second issue states: “Whether as a matter of equity a discharge should be changed given the circumstances presented and given the applicant’s post discharge conduct?” The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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. T he Board considered the applicant’s testimony and post service documentation. The Board found that the applicant’s post service accomplishments did not clearly demonstrate that the discharge at the time of issue was inequitable. The applicant offered very little evidence that he goes above and beyond his day- to- day activities to support an upgrade based on post service conduct. Relief is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that commission of a serious offense was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560, Change 10/84, effective 17 Sep 84 until 15 Dec 85), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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 " afls10.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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