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NAVY | DRB | 2001_Navy | ND01-00798
Original file (ND01-00798.rtf) Auto-classification: Denied


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


ex-HM3, USN
Docket No. ND01-00798

Applicant’s Request
The application for discharge review, received 010524, 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 011214. After a thorough review of the records, 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 ACT, authority: MILPERSMAN, Article 1910-148 (previously 3630400).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.


Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     940629 - 950612  COG

 Period of Service Under Review :
Date of Enlistment: 950613               Date of Discharge: 991110

 Length of Service (years, months, days):
         Active: 04 04 28
         Inactive: 00 00 00
Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 57
Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (1)    Behavior: 1.00 (1)                OTA: 2.43

 Military Decorations: None
Unit/Campaign/Service Awards: NMCAM, GCM, FMFR, NDSM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MILPERSMAN, Article 1910-148 (previously 3630400).

 Chronological Listing of Significant Service Events :

991007:  Applicant’s Voluntary Statement received by HM2, concerning his homosexuality.
991008:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0630-0945, 9Sep99.
         Award: Restriction and extra duty for 15 days, reduction to HN. Reduction suspended for 6 months. No indication in the record of appeal.

991028:  Applicant notified of intended recommendation for by reason of homosexuality as evidenced by applicant's statement that he admitted to being a homosexual. Applicant advised, that if separation is approved, the characterization of his service may be under honorable conditions (general).
991028:  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.
991029:  Commanding officer recommended discharge under honorable conditions (general) by reason of homosexuality as evidenced by his statement that he had engaged in homosexual acts.
991102:  BUPERS directed the applicant's discharge with characterization as type warranted by service record by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 991110 with a general (under honorable conditions) by reason of homosexuality - homosexual acts (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).
The applicant introduced no decisional issues for consideration by the Board.

 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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 23 Aug 00, 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 “ 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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