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NAVY | DRB | 2004_Navy | ND04-00221
Original file (ND04-00221.rtf) Auto-classification: Denied



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

ex-DT3, USN
Docket No. ND04-00221

Applicant’s Request
The application for discharge review was received on 20031119. 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 20040728. 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)/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. “I believe my type of discharge to be discrminatory in nature. I received the least possible one. I was discharge for the good welfare of the Navy and myself. I feared for my life because of my sexual orientation. I served my country proudly and very well. I was praised wherever I served. I even served over in conflict under NATO operations with Kosovo. The only mark on my record is a UA which occured immediately after informing my Chief about being gay. I became very upset over his reaction and left. I was afraid for my well-being and what was going to happen to me. I rightfully deserve to be Honorably Discharged. Please correct this injustice and give me an Honorable Discharged as recommended by my CO.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Second page of Commanding Officer’s recommendation
Five pages from Applicant’s service record
Certificate of recognition for Partner in Education, dated May 11, 1998
Certificate of recognition for Exceptional Dental Apprentice Award, dated May 11, 1998
Certificate in Recognition of Outstanding Academic Achievement, dated May 11, 1998
Certificate of Achievement for Fall 1998
Letter of Appreciation, for March 26, 1999
Applicant’s DD Form 214
Letter of Appreciation for period April 6, to April 20, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970707 - 980106  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980107               Date of Discharge: 010119

 Length of Service (years, months, days):

         Active: 03 00 13         [Does not exclude lost time]
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 94

 Highest Rate: DT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.25 (4)    Behavior: 2.75 (4)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: N&MCOSR, AFEM, NATO

 Days of Unauthorized Absence: 15

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

 Chronological Listing of Significant Service Events :

001026:  Applicant to unauthorized absence 1030, 001026.

001109:  Applicant from unauthorized absence 1325, 001109 (15 days/surrendered).


001109:  Applicant’s Voluntary (verbal) Statement made to Commanding Officer, concerning his homosexuality. [Extracted from Commanding Officer’s letter dated 001208.]

001206:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 001026 to 001108 (14 days/surrendered).
         Award: Forfeiture of $656.40 per month for 2 months, extra duty for 14 days, reduction to DTDN, oral admonition. Forfeiture 1/2 month’s pay for 1 month and reduction suspended for 6 months. No indication in the record of appeal.

001208:  Applicant notified of intended recommendation for by reason of homosexuality as evidenced by member’s statement that he is a homosexual or bisexual. Or words to that effect, which creates a rebuttable presumption that he 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 his service may be general (under honorable conditions).
001208:  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.

001208:  Commanding Officer recommended discharge with an honorable by reason of homosexuality as evidenced by his statement that he is a homosexual or bisexual. Commanding Officer’s comments (verbatim): (1) On 9 November 00, in a private, witnessed conversation, Petty Officer J_ (Applicant) stated to me, “I am homosexual, am strongly compelled to live an “openly gay” lifestyle, and thus, can not/will not continue to live a lifestyle which “represses” me from publicly being who I am.’ This profession was reiterated in a second meeting on 5 December 00. It is my opinion that this member’s statement(s) is creditable, he understands his rights and privacy protection under the Navy’s homosexual policy, and further, understands the full impact of his profession of homosexuality and compulsion to engage in homosexual conduct, thus constituting a clear and just basis for administrative separation.
         (2) I recommend that upon member’s discharge his naval service be characterized as “honorable”.

 Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010119 with a general (under honorable conditions) by reason of homosexuality - homosexual admission (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the available 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: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The Applicant’s admission of homosexuality demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate. A characterization of service general (under honorable conditions) is warranted when the service member’s conduct constitutes a departure from that expected of a Sailor. The Applicant’s service record is marred by award of non judicial punishment (NJP) for violating UCMJ, Article 86, thus substantiating the misconduct and justifying separation with a general discharge. Relief denied.

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. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.

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 or any other evidence related to his discharge at that time. 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 30, dated
7 Nov 00, effective 24 Aug 00 until Present, 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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