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NAVY | DRB | 2003_Navy | ND03-00607
Original file (ND03-00607.rtf) Auto-classification: Denied


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

ex-MLFN, USN
Docket No. ND03-00607

Applicant’s Request
The application for discharge review was received on 20030226. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20040128. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Investigation probe: leading to Discharge. (Pls See Attached).”

2. “1993 Presidential order barring such probes. (Pls see Attached)”

As stated in attachment:

Dear Chief of Naval Operation,

In January of 1994 I was released from the United States Navy with a general under honorable conditions along with a no reentry code.

The reason for this type of discharge was due to an experimental relationship with another young woman on board my vessel. Our companionship was questioned because it was thought “We were too close to be just friends.” We were young and truthful and were unaware of the dire results of our exploration, would to be no longer able to serve our great nation and a forfeiture of our benefits

Under the 1993 President C___’s “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass” policy, we should have never been asked. At the time of this “investigation” I had no idea about the Don’t Ask policy. My vessel legal department “suggested” that we leave the military so that our mothers wouldn’t learn what type of children we had become.

I am writing to plead to you that my discharge be restored to Honorable, as I had served my nation 4 years several months prior to this “probe”, and the use of my benefits reinstated. Once again please think about my request, under the Don’t Ask policy I should have been able to serve the remaining term of my enlistment no questions ask.

I’ve enclosed some documents for your review for your review, thank you for your time and consideration.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of BUPERS Message date December 7, 1993
Copy of GI Bill
Copy of Administrative Remarks (GI Bill Benefits/Medical/Dental Coverages)
Copy of US Merchant Mariner’s Document (front and back)
Copy of Social Security Card
Copy of Driver’s License
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881104 - 890731  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890801               Date of Discharge: 940105

 Length of Service (years, months, days):

         Active: 04 05 05
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 33

 Highest Rate: MLFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (5)    Behavior: 3.48 (5)                OTA: 3.56

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BATTLE”E”(2), SASM(3), MUC, SSDR(2)

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

921003:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 91: Insubordinate conduct toward a petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

921003:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer.
         Award: Forfeiture of $440.00 pay per month for 1 month, restriction and extra duty for 20 days, reduction to E-2 suspended for 90 days. No indication of appeal in the record.
930729:  Retention Warning: Advised of deficiency (Your failure to maintain sufficient funds in your banking account to ensure full payment on checks upon presentment to your banking facility.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
931004:  Applicant notified of intended recommendation for discharge general under honorable conditions homosexuality by reason of voluntary statement and by reason of misconduct due to the commission of a serious offense [Extracted from CO’s message].

931005:  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 [Extracted from CO’s message].

931107:  Applicant reviewed letter of notification and statement of awareness again and did not desire to make any changes to Statement of Awareness or request any further rights [Extracted from CO’s message].

931207:  Commanding Officer recommended discharge under other than honorable conditions by reason of homosexuality and misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): MLFN C_ (Applicant) is being processed because she has requested to be separated from the naval service due to her homosexual tendencies. She is not being separated due to commission of serious offense and therefore, request she be separated with a characterization of discharge as honorable. Ship deployed with limited means to transport SNM stateside.

931212:  BUPERS 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 19940105 with a 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).

 Issues 1 and 2. “Investigation probe: leading to Discharge” (Pls See Attached),” and “1993 Presidential order barring such probes (Pls see Attached).” The Applicant did not provide the referenced documents. While Applicant may feel that this alleged investigation was the reason for her discharge, upon her own request for discharge due to homosexual tendencies, the Applicant was properly dual processed for discharge by reason of misconduct due to commission of a serious offense (violation of the UCMJ, Article 91 – insubordinate conduct toward a petty officer) and homosexuality due to Applicant’s voluntary statement. It was noted that the Applicant’s service was further marred by an adverse counseling entry. Accordingly, the Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her 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 and an upgrade to honorable would be inappropriate. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. 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.

The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

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 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 5, effective
05 Mar 93 until 21 Jul 94, 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 " 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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