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NAVY | DRB | 2004_Navy | ND04-00054
Original file (ND04-00054.rtf) Auto-classification: Denied


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

ex-ATAN, USN
Docket No. ND04-00054

Applicant’s Request
The application for discharge review was received on 20031006. The Applicant requests the reason for the discharge be changed to “SEC. AUTH.” The Applicant requests a documentary record 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 20040715. 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 narrative reason of the discharge shall not change. The discharge shall remain: HONORABLE/ HOMOSEXUAL ADMISSION, authority: MILPERSMAN, Article 1910-148 (previously 3630400).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “Dear Sir or Madam:

I have submitted an appeal and character of reference letters of support to the Board of VA Appeals. It is my sincere interest and earnest intent that I be considered as a deserving candidate of G I Bill Educational benefits and adjustments to my DD 214.

Focused on a promising career I chose to become a United States Sailor, at age 18 in March 1998, after having successfully completed two years at Triton Community College, where I accumulated a grade point average of 3.2. I then joined the Navy. My adherence to strict moral or ethical codes was recognized at the boot camp graduating ceremony when I was honored with the Navy League Award. I also held the position of the Sergeant at Arms during training.

As an Aviation Electronics Technician, at age 20, I was assigned to the Enterprise Naval Vessel and stationed in Jacksonville, Florida. This was a confusing time for me because of the change of lifestyle. My boyfriend was living in Chicago at this time and I did not date anyone while in the service. My life consisted of 14-hour work days and weekends attending off campus college courses with Southern Illinois University, where I earned a BA Degree in Aviation Management.

I began to feel lonely and had thoughts of homosexuality, which was unfamiliar territory for me. I brought this to the attention of a priest who listened to me and advised me to seek the opinion and direction of a female Jag Officer, whom I do not remember, the name of. I told the Jag Officer that I had thoughts of homosexuality but had not been involved in homosexual acts with anyone. She suggested that I request separation from the Navy and so I did. I made it clear that I would not agree to separation if my Educational GI Bill Benefits would be forfeited. She insured me that I was eligible and recognized that I contributed to the Bill. I followed her advice and requested a separation from the Navy in order to spare myself and my command from being inconvenienced. Being so young, I trusted her and decided that this was the best choice for me. I am not homosexual nor have I ever acted upon those thoughts.

My DD 214 states that I was discharged for homosexual conduct admission, which is misleading and inaccurate. I never admitted to being homosexual. It has limited me from being hired into a Federal position. The GI Bill could help me in my future endeavors.

I intended to uphold everything the Navy stands for honor, courage, and commitment and seek your assistance in freeing me from all erroneous labels.

Sincerely,

V_ M_ ( Applicant )
Naval Veteran”

Additional issues submitted by Applicant’s representative (American Legion):

2. “Equity Issue: Based on our review of evidentiary record, we aver on behalf of this former member that the narrative reason for discharge, Homosexual Conduct Admission, is erroneous and warrants the Board’s relief with amendment to Secretarial Authority.”





Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference, dated July 3, 2003
Character reference, dated May 30, 2003
Thirty-seven pages from Applicant’s service/medical records
Applicant’ DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980203 - 980330  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980331               Date of Discharge: 000419

 Length of Service (years, months, days):

         Active: 02 00 19
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 10 GED           AFQT: 75

 Highest Rate: ATAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR, NAT0, NUC

 Days of Unauthorized Absence: None

*No marks were found in service record

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
HONORABLE/HOMOSEXUAL ADMISSION, authority: MILPERSMAN, Article 1910-148 (previously 3630400).

 Chronological Listing of Significant Service Events :

000321:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000321:  Applicant waived right to administrative discharge board provided the Commanding Officer recommended an honorable discharge.
000327:  Applicant’s Voluntary Statement made to the Commanding Officer of VS-22, concerning her homosexuality.
000328:  Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by Applicant's statement that she is a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. Applicant advised, that if separation is approved, the characterization of service may be under other than honorable conditions.
000328:  Commanding Officer recommended honorable discharge by reason of homosexuality as evidenced by her statement that she is a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

000405:  CNPC directed the Applicant's honorable discharge by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was honorably discharged on 20000419 by reason of homosexuality - homosexual admission (or attempt) (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. Homosexual conduct exists if a service member has stated that she is a
homosexual or bisexual, or made other statements indicating a propensity or intent to
engage in homosexual actions. The Applicant stated she was a homosexual on 20000327. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

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. The Applicant’s characterization of service should not jeopardize her receipt of potential VA benefits, however the Applicant’s time in service of less than three years could limit the receipt of some benefits, to include the Montgomery GI Bill. The Applicant should contact the Veterans Administration to ascertain what benefits she is eligible for.
The Applicant’s discharge characterization accurately reflects her service to her country. The discharge was proper and equitable. 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. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of her 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 24, effective 20 May 99 until 23 Aug 00, Article 1910-148 (previously 3630400), Separation 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 “ 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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