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NAVY | DRB | 2002_Navy | ND02-00332
Original file (ND02-00332.rtf) Auto-classification: Denied


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

ex-MS3, USN
Docket No. ND02-00332

Applicant’s Request
The application for discharge review, received 020128, requested that the reason for the discharge be changed. 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 020912. 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: HONORABLE/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. During my assignment on the USS KITTY HAWK I was at constant odds with my Chief Petty Officer. I tried to transfer a number of times, but was never successful. During this time I started an affair with one of my shipmates wife. He found out and threatened to kill me. On our next cruise, he actually slashed my bunk and bed clothes with a knife. I was transferred to another division to avoid this man. A First Class Yeoman talked to me about getting off the ship. He said that fastest way off the ship was to state that I was a homosexual. He assisted me with the paperwork and within 2 months I was discharged. I would like to enlist in the reserves, but the discharge reason and the RE-4 Code are preventing this. I have never been a homosexual and would not have stated this except under the threat of my life by the other sailor. Please change my discharge reason to show "End of Required Active Duty" and My Reenlistment Code to an RE-1.

 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: USN                        None
         Inactive: USNR (DEP)     891128 - 891226  COG

 Period of Service Under Review :
Date of Enlistment: 891227               Date of Discharge: 921026

 Length of Service (years, months, days):

         Active: 02 10 00
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 65

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.93 (3)    Behavior: 3.86 (3)                OTA : 3.86

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

HONORABLE/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.


 Chronological Listing of Significant Service Events :

900414:  Civil Conviction for violation of VC 23152 (A) Driving Under the Influence.
 Sentence: Found guilty of driving under the influence. Fined $1032.00 and probation for five years.
Remarks: Member to attend first conviction program/NADSAP and show proof of compliance on 900727. Drivers license restricted for 90 days.
920218:  Psychiatric evaluation indicates Applicant is psychologically fit and suitable for full duty and is responsible for his own action.

920302:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your enlistment service record, and homosexuality due to your engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts.

920304:  NJP for violation of UCMJ, Article 111: Drunk driving at NAS North Island on 920206.
         Award: Forfeiture of $250.00 per month for 2 months. No indication of appeal in the record.
920518:  Commanding Officer recommended discharge under honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his enlisted service record, and homosexuality due to his engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts.

920929:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

921019:  BUPERS directed the Applicant's discharge under 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 921026 for misconduct due to commission of a serious offense with an honorable characterization of service (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 was processed for separation by reason of misconduct due to commission of a serious offense and homosexuality due to engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts. The misconduct is documented in the Applicant's service record and serves as the narrative reason in block 28 of his DD214.

Issue 1: The Applicant is requesting to have his reenlistment code changed so that he can join the reserves. The NDRB has no authority to change reenlistment codes or make recommendations to permit reentry or reinstatement into the naval service or any other of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief is therefore denied.

Issue 2: The Applicant requested that the basis for his discharge be changed to "End of Required Active Duty." The Applicant served 2 years and 10 months on a 4 year contract. The Applicant failed to reach the end of his required active duty. Accordingly, this request is denied.

The following is provided for the benefit of the Applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Relief denied.

 The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. 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. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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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