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NAVY | DRB | 2003_Navy | ND03-00163
Original file (ND03-00163.rtf) Auto-classification: Denied


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

ex-AKAA, USNR
Docket No. ND03-00163

Applicant’s Request
The application for discharge review, received 20021106, 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 20031003. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority: MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

1. “I am requesting that my discharge be upgraded from general under honorable to a Honorable Discharge. I haven’t been in trouble since I been out of the U.S. Navy. I would like all my benefits back I would like to go back to school for my associates degree so that I can better myself & my wife & kids. Please review my service record. I thank you all for your time.”

 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):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890706               Date of Discharge: 930624

 Length of Service (years, months, days):

         Active: 03 00 06
         Inactive: 00 11 12

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 33/32

 Highest Rate: AKAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.72 (5)    Behavior: 3.60 (5)                OTA: 3.76

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM (2), SSDR, OSR, KLM, CAR, Letter of Appreciation

 Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority: MILPERSMAN, Article 3630400.

 Chronological Listing of Significant Service Events :

900619:  Applicant ordered to active duty for 36 months under the Active Mariner Program.

900620:  You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings. No seat belt, 8/89, Apache, OK, paid $29. Running stop sign, 8/89, Apache, OK. Warned and released.

930226:  NJP for violation of UCMJ, Article 125: Sodomy with SR on 930213, to wit: by engaging in unnatural carnal copulation, violation of UCMJ, Article 134 (2 specs): (1) Wrongfully commit an indecent act with AR by placing his hand on the penis of AR, and masturbating him on 930213, (2) Wrongfully commit an indecent act with AR, by allowing AR to place his hand on the penis of AKAN and masturbating him on 930213.
         Award: Restriction and extra duty for 45 days, reduction to AKAA. No indication in the record of appeal.

930301:  Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by having engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts. Applicant advised, that if separation is approved, the characterization of service may be under other than honorable conditions.
930304:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
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 serious offense as evidenced by punishment received at Commanding Officer’s nonjudicial punishment held on 26 February 1993 for violation of the UCMJ Article 125 (sodomy), and Article 134 (indecent acts with another), with two specifications thereunder, and by reason of homosexuality as evidenced by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930624 under honorable conditions (general) by reason of homosexuality – having engaged in, attempted to engage in, or solicited another to engage in a homosexual act or 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. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion and an adverse counseling entry on another occasion. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. The Veterans Administration determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. 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. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. 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 5, effective
05 Mar 93 until 21 Jul 94, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON Of HOMOSEXUALITY.

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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