Search Decisions

Decision Text

NAVY | DRB | 2002_Navy | ND02-00266
Original file (ND02-00266.rtf) Auto-classification: Denied


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

ex-PCSN, USN
Docket No. ND02-00266

Applicant’s Request
The application for discharge review, received 020114, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021022. 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 ACT, authority: MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that his narrative reason for discharge, homosexual acts, is clearly erroneous. Therefore, his character of service warrants upgrade to full honorable and his narrative reason amended to Secretarial Authority.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
One hundred and seventy-two pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     950612 - 950802  COG

 Period of Service Under Review :
Date of Enlistment: 950803               Date of Discharge: 970718

 Length of Service (years, months, days):

         Active: 01 11 16
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 69

 Highest Rate: PCSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)    Behavior: 3.00 (1)                OTA: 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, OSR

 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 3630400.

 Chronological Listing of Significant Service Events :

970207:  Incident complaint report. Complainant stated he witnessed an indecent act between T_ and P_.

 970603:  Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by Applicant's statement that he engaged in homosexual acts. Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.
         Note: Applicant never officially stated he had engaged in any homosexual acts. Statement taken from sworn testimony provided by witness(s).
970603:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
970603:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed homosexual acts and that such acts warranted separation, and recommended discharge general (under honorable conditions).

970703:  Commanding Officer recommended discharge with (general) under honorable conditions by reason of homosexual conduct as evidenced by member (Applicant) engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts as evidenced by Indecent Complaint Report 07FEB97-46193-0035-8G1.

970718:  BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970718 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, 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 Board disagrees with the Applicant’s contention that his discharge was erroneous. The Board presumes regularity in the processing of the Incident Complaint Report and the subsequent Administrative Discharge Board. The Administrative Discharge Board, based upon a preponderence of the evidence and by unanimous vote, found that the Applicant had committed homosexual acts and that such acts warranted separation. The Applicant’s discharge was proper and equitable and conducted IAW the direction provided by MILPERSMAN Article 3630400, Separation of Enlisted Personnel by Reason of Homosexual Conduct. The characterization of the discharge is appropriate and no other reason code more accurately describes the reason for the Applicant’s discharge. Relief denied.

Issue 2: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. The Applicant did not provide any post-service documentation to support his request for clemency. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C) Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630400, SEPARATION OF ENLISTED PERSONNEL 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

Similar Decisions

  • NAVY | DRB | 1999_Navy | ND99-00023

    Original file (ND99-00023.rtf) Auto-classification: Denied

    950508: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed homosexual acts and that such acts warranted separation, and recommended discharge General (under Honorable conditions). PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 950807 with a General (under Honorable conditions) by reason of homosexuality – stated he is a homosexual (A). You...

  • NAVY | DRB | 2000_Navy | ND00-00324

    Original file (ND00-00324.rtf) Auto-classification: Denied

    The applicant requested a documentary record discharge review. 980206: BUPERS directed the applicant's discharge with an under Other Than Honorable conditions by reason of homosexual conduct acts. 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 the applicant’s issue 1, the Board determined this issue is without merit.

  • NAVY | DRB | 2003_Navy | ND03-00163

    Original file (ND03-00163.rtf) Auto-classification: Denied

    Please review my service record. 930310: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed homosexual acts and that such acts warranted separation, and misconduct due to commission of a serious offense and recommended discharge under honorable conditions (general). 930324: Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to commission of a...

  • NAVY | DRB | 1999_Navy | ND99-00107

    Original file (ND99-00107.rtf) Auto-classification: Denied

    Chronological Listing of Significant Service Events : 970619: Applicant’s Voluntary Statement made to whom it may concern, concerning his homosexuality.970619: Applicant notified of intended recommendation for by reason of homosexuality as evidenced by applicant's statement that he admitted to being a homosexual. 970718: 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...

  • NAVY | DRB | 2002_Navy | ND02-00268

    Original file (ND02-00268.rtf) Auto-classification: Denied

    The applicant requested a documentary record discharge review. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:None PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 840712 - 850709 COG Period of Service Under Review :Date of Enlistment: 850710 Date of Discharge: 881116 Length of Service (years, months, days):Active: 03 04...

  • NAVY | DRB | 2004_Navy | ND04-00391

    Original file (ND04-00391.rtf) Auto-classification: Denied

    The Applicant’s submitted a statement indicating, “I feel the mast itself was done fairly and I was given ample opportunity to speak on my own behalf.” Further, the Applicant waived his right to request an Administrative Board to contest his separation. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. You may view DoD Directive 1332.28 and other Decisional Documents by going online...

  • NAVY | DRB | 1999_Navy | ND99-01007

    Original file (ND99-01007.rtf) Auto-classification: Denied

    851002: CNMPC directed the applicant's discharge as under Honorable conditions (General) by reason of homosexuality. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 851009 under Honorable conditions (General) for homosexuality (A). 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 introduced...

  • NAVY | DRB | 1999_Navy | ND99-00561

    Original file (ND99-00561.rtf) Auto-classification: Denied

    870714: Applicant notified of intended recommendation for by reason of commission of a serious offense as evidenced by violation of UCMJ, Article 125 (Sodomy) and homosexuality as evidenced by his statement that he engaged in homosexual acts. 870816: CNMPC directed the applicant's discharge with characterization of other than honorable by reason of homosexual conduct. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found...

  • NAVY | DRB | 2000_Navy | ND00-00843

    Original file (ND00-00843.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEWDECISIONAL DOCUMENT ex-FR, USN Docket No. 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. ...

  • NAVY | DRB | 1999_Navy | ND99-00099

    Original file (ND99-00099.rtf) Auto-classification: Denied

    ND99-00099 Applicant’s Request The application for discharge review, received 981023, requested that the characterization of service on the discharge be changed to honorable. 970327: BUPERS directed the applicant's discharge with characterization as type warranted by service record by reason of homosexual conduct acts PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 970416 with an under other than honorable conditions by reason of...