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NAVY | DRB | 2002_Navy | ND02-00436
Original file (ND02-00436.rtf) Auto-classification: Denied


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

ex-FC3, USN
Docket No. ND02-00436

Applicant’s Request
The application for discharge review, received 020226, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to administrative. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021029. 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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) This former member avers that his overall service record clearly supports a recharacterization of service period to fully honorable.

2. (Equity Issue) This former member further avers that his narrative reason for discharge should be amended to Secretarial Authority because he was coerced into stating he was homosexual.

3. (Equity Issue) This former member finally 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 Applicant's DD Form 214
Letter from Congressman S_ L_ dated January 12, 1999
Letter from Colonel R. S. M_, U. S. Marine Corps to Congressman S_ L_ dated
December 18, 1998
 Copy of BUPERS Enlisted orders dated June 16, 1997
Copy of message dated October 19, 1998
Copy of award from the city of Farmington and Farmington Hills presented Memorial
Day 1998
 Newspaper article, undated
Twenty-five pages from Applicant's service record
Copy of appreciation award for exemplary service to Central Middle School, undated
Copy of note from the staff and students at Central Middle School, undated
Note from a student at Central Middle school dated march 18, 1998
Thank you note, undated
Thank you note, undated
Thank you note dated March 18, 1998
Thank you note from a student at Central Middle School, undated
Thank you note, undated
Thank you note, undated
Thank you note, dated March 18, 1998
Thank you note, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               920218 - 971002  HON
         Inactive: USNR (DEP)     910827 - 920217  COG

 Period of Service Under Review :
Date of Enlistment: 971003               Date of Discharge: 981113

 Length of Service (years, months, days):

         Active: 01 01 11
         Inactive: None

 Age at Entry: 24                          Years Contracted: 3

 Education Level: 12                        AFQT: 80

 Highest Rate: FC3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 4.00 (1)    Behavior: 4.00 (1)                OTA: 3 .57

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, AFEM (2), SSDR (2), NER (3), GCM, NATO, AFSM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

980526:  NJP for violation of UCMJ, Article 86 (2 specs):
 Specification 1: Unauthorized absence 0730-1200, 23Apr98
Specification 2: Unauthorized absence 1200-1208, 22May98.
Violation of UCMJ, Article 107: Make a false official statement with intent to deceive.
         Award: Forfeiture of $727 per month for 1 month, reduction to FC3 Reduction suspended for 6 months. No indication of appeal in the record.
980730:  Vacate suspended reduction to FC3 awarded at CO's NJP dated 26May98 due to continued misconduct.
980731:  NJP for violation of UCMJ, Article 86: Unauthorized absence 0500-0945, 28Jul98.
         Award: Forfeiture of $200 per month for 1 month, reduction to FCSN. Reduction suspended for 6 months. No indication of appeal in the record. Appealed 980806. Appeal denied 980824.

980806:  Applicant's statement re: appeal from nonjudicial punishment. Complete statement found in service record.
980813:  Applicant advised of rights and acknowledgement/statement re: suspected of having admitted the following admission of homosexuality. Applicant interviewed by SKC due to inhouse investigation due to his self-admission of "being gay" in his appeal statement (980806). Applicant refused to make a statement.

981009:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexual conduct and misconduct due to the commission of a serious offense.
981009:  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.
981014:  Commanding Officer recommended discharge general (under honorable conditions) by reason of homosexual conduct and misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): [Due to (Applicant's) credible admission of homosexual conduct, I recommend separation from the Naval service with a separation of General discharge (under honorable conditions). Because there is no evidence of aggravating acts, this command does not recommend an other than honorable discharge. Furthermore, I recommend (Applicant) receive separation pay for time in service.]

981019:  CNMPC directed the Applicant's discharge general (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 981113 with a discharge characterization of general (under 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).

Issue 1: The Applicant believes his overall service record supports recharacterization to fully honorable. The Board has advised the Navy Personnel Command to administratively correct the Applicant’s DD Form 214 to reflect his honorable service from February 18, 1992 to October 2, 1997.

Regulations limit the NDRB’s review to include only the enlistment period under consideration for propriety and equity. During the enlistment period under review, the Applicant’s service is marred by award of non-judicial punishment (NJP) on two occasions to include violations of UCMJ, Article 86, unauthorized absence (3 specifications) and violation of Article 107, making false official statements. Making false official statements is considered a serious offense and is an offense triable by court-martial. The Applicant’s discharge characterization was directed by the Chief, Navy Military Personnel Command as general (under honorable conditions) for commission of a serious offense. The discharge characterization is proper and equitable. Relief denied.

Issue 2: The Applicant further requests a narrative reason change. 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 Applicant’s DD Form 214, Block 26, Separation Code, HKQ, indicates he was separated for misconduct based on the commission of a serious offense. Block 28, states “Misconduct” as the Narrative Reason for Separation. The Applicant was not separated for his admission of homosexuality, but rather for his misconduct that was properly adjudicated through non-judicial punishment. No other Separation Code, or Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Separation Code, or Narrative Reason for Separation would be inappropriate. The Applicant’s discharge was proper and equitable. Relief denied.

Issue 3: 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. 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. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The evidence submitted by the Applicant does not mitigate his conduct while on active duty, and therefore an upgrade based on post-service conduct is not warranted. 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION 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 " 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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