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NAVY | DRB | 2001_Navy | ND01-00216
Original file (ND01-00216.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND01-00216

Applicant’s Request
The application for discharge review, received 001211, 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 010615. 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: GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ADMISSION, authority: MILPERSMAN, Article 1910-148 (previously 3630400).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. Reason I was denied the Montgomery GI Bill.

Navy's reason for not honorably discharging me and taking my circumstances into account.

Reason the Navy did nothing to ensure my safety.

Why the Navy did not follow the orders in MILPERSMAN 1910-148 when processing me for discharge.

Please review policy. Enclosed.

Change of reenlistment and separation code to enable and allow me to reenlist.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Copy of DD Form 215
Letter from applicant dated December 1, 2000
Copy of administrative message dated 28 October 1999 re: continuing guidance concerning proper application of DOD Homosexual Conduct Policy
Letter from applicant dated September 23, 1999
Letter from applicant dated June 17, 2000
Letter from applicant dated September 27, 1999
Copy of administrative message dated 13 April 2000 re homosexual conduct policy and training requirements
Letter from Department of Veterans Affairs dated March 3, 2000
Copy of Department of Veterans Affairs, Notice of Procedure and Appellate Rights
Letter from Department of Veterans Affairs dated May 15, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     970418 - 970727  COG

 Period of Service Under Review :
Date of Enlistment: 970728               Date of Discharge: 991124

 Length of Service (years, months, days):

         Active: 02 03 27
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 56

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 1910-148 (previously 3630400).

 Chronological Listing of Significant Service Events :

991013:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730, 13Jul99 to 0650, 29Jul99; violation of UCMJ, Article 91: Disobey a lawful order.
         Award: Restriction and extra duty for 45 days, reduction to HA. Reduction suspended for 6 months. No indication in the record of appeal.

990923:  Applicant’s Voluntary Statement made to Lt, concerning his homosexuality.

991029:  Applicant notified of intended recommendation for by reason of commission of a serious offense and by reason of homosexuality as evidenced by applicant's statement that he admitted to being a homosexual or engaged in homosexual acts. Applicant advised, that if separation is approved, the characterization of his service may be general (under honorable conditions).
991029:  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.

991112:  Commanding officer directed discharge under honorable conditions (general) by reason of misconduct due to commission of a serious offense and by reason of homosexuality as evidenced by his statement that he had engaged in homosexual acts. Commanding officer’s comments (verbatim): HN (applicant) has sated 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 a propensity to engage in, or intends to engage in homosexual acts. In addition, HN (applicant) committed a serious offense as evidenced by his nonjudicial punishment of 13 October 1999. Per reference (a) and (b), I authorize that he be separated from the naval service, and that his discharge be characterized as General (Under Honorable Conditions).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991124 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 and equitable (C and D).

Issue 1. The applicant makes the following statements: He was denied the Montgomery GI bill; the Navy’s reason for not honorably discharging him and taking his circumstances into account; the Navy did nothing to ensure his safety; the Navy did not follow the orders in MILPERSMAN 1910-148, when processing him for discharge; and he wants his reenlistment and separation code changed to allow him to reenlist. A military member normally must serve 36 months to receive G.I. Bill benefits. The applicant served 27 months, in the Navy. Homosexual admission is a violation of the UCMJ, plus the applicant did not have performance marks that rated an Honorable discharge. Whether or not safety precautions were taken prior to his discharge is not an issue for this Board to consider. After reviewing MILPERSMAN 1910-148, it was determined that the applicant’s command did follow this directive when processing him for discharge. The NDRB is not authorized to change reenlistment codes. The applicant will have to petition the Board of Correction of Naval Records (BCNR) to have his reenlistment code changed. The discharge was proper and equitable. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 Dec 98 until 19 May 99, Article 1910-148 (previously 3630400), Separation 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 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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