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NAVY | DRB | 2004_Navy | ND04-00142
Original file (ND04-00142.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00142

Applicant’s Request
The application for discharge review was received on 20031104. 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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030812. 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

Applicant’s issues, as stated on the application:

1. “Please review my records to see if my discharge can be upgraded to honorable. I was discharged due to another sailor stating I had engaged in a homosexual act, this is not true. He didn’t know me and was not even from my ship. I feel I was railroaded out of the Navy by some one else’s mean spirited action. I feel that I did a good job for the Navy and my country and would like an honorable discharge to show this service. Thank you for considering this request.”

Additional issues submitted by Applicant’s representative (AMERICAN LEGION):

 2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the service record reflects that this former member maintained satisfactory overall performance markings of 3.26. On 890823, DIS filed a report that revealed a non-disclosed pre-service criminal history. On 891214, he was awarded NJP for VUCMJ, Art. 125 - sodomy (3 specs). His due process included an ADB which recommended on 900320 that he separated with a GD due to fraudulent enlistment and homosexual conduct. His command concurred and he was he was discharged General (Under Honorable Conditions) due to homosexually as authorized by NAVMILPERSMAN, Art. 3630400.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he is not a homosexual and was never involved in any kind of homosexual conduct during his period of naval service. He has not submitted any additional documentation for the Board’s consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890329 - 890403  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890404               Date of Discharge: 900404

 Length of Service (years, months, days):

         Active: 01 00 01
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

* No Marks Found

 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 :

Not Dated:       Applicant’s Voluntary Statement made to MAC C_, concerning his homosexuality.
891204:  NJP for violation of UCMJ, Article 125: (1) Wrongfully commit sodomy on or about 02 AUG 89; (2) Wrongfully commit sodomy on or about 27 AUG 89; and (3) Wrongfully commit sodomy on or about 10 SEP 89.
         Award: Forfeiture of $150.00 per month for 2 months, restriction and extra duty for 30 days. No indication in the record of appeal.

891226:  Applicant notified of intended recommendation for administrative separation from the naval service by reason of homosexuality as evidenced by his Nonjudicial Punishment hearing on 14 December 1989 for violation of UCMJ Article 125 (3 specifications) committed on 02 and 27 August, and 10 September 1989.
891226:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
900209:  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 recommended a general discharge (under honorable conditions).

900320:  Commanding Officer recommended discharge under honorable conditions (general) by reason of homosexuality.

900329:  CNMPC directed the Applicant's discharge with characterization as general.

PART III – RATIONALE FOR DECISION AND PERTINENT/LAW

Discussion

The Applicant was discharged on 19900404 with a general (under honorable conditions) by reason of homosexual 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).

 Issues 1 and 2. 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. Homosexual conduct
exists if a service member has stated that he is a homosexual or bisexual, or made other
statements indicating a propensity or intent to engage in homosexual actions. The
Applicant made a voluntary statement that he was a homosexual. The Applicant’s service
was marred by award of nonjudicial punishment (NJP) for violation of Article 125 of the
UCMJ. 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 is inappropriate. Relief
denied.
No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

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’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Therefore, no relief will be granted.

 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. Representation at a personal appearance hearing is recommended but not required.




Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), 15 June 1987 until
14 Aug 91, 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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