Search Decisions

Decision Text

NAVY | DRB | 2004_Navy | ND04-00391
Original file (ND04-00391.rtf) Auto-classification: Denied


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


ex-SN, USN
Docket No. ND04-00391

Applicant’s Request
The application for discharge review was received on 20040107. 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. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040910. 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 OTHER THAN HONORABLE CONDITIONS/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:
My discharge was inequitable because it was based on accusations by three fellow sailors, that gave three different stories, none of which were verified. I was addressed about the accusations a couple of days later, and was told that I had to be removed from the “boat”(submarine) because I was responsible for the ships low moral, due to rumor-rumors which I hadn’t heard at that time. I was a “hot runner” who had just reenlisted for two years as a Sonar Tech, acquiring E-5 status in the process, with a clean military record as well as civilian life at that time. I was proud to be in the Navy, serving my country, and striving for goal with the help of my Naval Experience. Based on accusations, I think the discharge was unfair and unfounded, and I respectfully request that you can see fit to upgrade my discharge to honorable.

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: USNR (DEP)     870319 - 870419  COG
          Active: USN                        870420 – 900205  HON
Period of Service Under Review :
Date of Enlistment: 900206               Date of Discharge: 900404

 Length of Service (years, months, days):
         Active: 00 01 29

 Age at Entry: 22                          Years Contracted: 6
Education Level: 12                        AFQT: 84

 Highest Rate: STS2
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.70 (2)    Behavior: 2.40 (2)                OTA: 3.10
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER OTHER THAN HONORABLE CONDITIONS/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 :

900206:  Reenlisted onboard USS A HAMILTON (SSBN617)(BLUE) for 6 years.
        
900308:  NJP for violation of UCMJ, Article 134: Indecent act with another.
         Award: Forfeiture of $400.00 pay per month for 2 months, reduction to E-4. No indication in the record of appeal.

900320:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality as evidenced by him engaging in homosexual acts. Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.
900320:  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 and to submit statements on own behalf either verbally or in writing before and Administrative Board or in writing if an Administrative Board is not convened. Applicant did object to the separation.

         Applicant’s statement (undated): [I am writing you in regard to my Captain’s mast and admin discharge. I feel that the mast itself was done fairly and I was given ample opportunity to speak on my own behalf. I feel, thought, that for such a situation that more could have been taken into consideration. Because we were drunk and our accusers claim to have been sober, and we’re responsible for our own actions, it seemed we didn’t have a chance. There is no evidence of either of us having had preferences for any males before. There’s enough character references that would argue in our favor. I feel that whatever really happened that night, no one is going to know for sure but I feel we’re getting the short end of the deal. I also feel we could have helped out quite a bit. I think that I showed above average capabilities in qualifying and wanting to learn. Even though my attitude was brought up, I don’t think I’m the daily Jekyll-Hyde I was made out to be. I think the Navy had a lot to offer me and I had a lot to offer it. I guess we’ll never know. Thanks for the opportunity anyway.]
900321:  Commanding Officer recommended Applicant discharge under other than honorable conditions by reason of homosexuality as evidenced by SNM being found to have committed the offense of violation of UCMJ Auricle 134 (Indecent act with another male crewmember) at NJP on 8 March 1990.
900327:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900404 under other than honorable conditions by reason of homosexual conduct (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. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for indecent acts, thus substantiating the misconduct for which he was separated. The Applicant contents that his “discharge was inequitable because it was based on accusations by three fellow sailors.” There is no indication in the record that the Applicant appealed his NJP. The Applicant’s submitted a statement indicating, “I feel the mast itself was done fairly and I was given ample opportunity to speak on my own behalf.” Further, the Applicant waived his right to request an Administrative Board to contest his separation. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

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. 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



Similar Decisions

  • NAVY | DRB | 2004_Navy | ND04-00142

    Original file (ND04-00142.rtf) Auto-classification: Denied

    “Please review my records to see if my discharge can be upgraded to honorable. 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. 900209: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed...

  • NAVY | DRB | 2003_Navy | ND03-00163

    Original file (ND03-00163.rtf) Auto-classification: Denied

    Please review my service record. 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...

  • NAVY | DRB | 2000_Navy | ND00-00324

    Original file (ND00-00324.rtf) Auto-classification: Denied

    The applicant requested a documentary record discharge review. 980206: BUPERS directed the applicant's discharge with an under Other Than Honorable conditions by reason of homosexual conduct acts. 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).In the applicant’s issue 1, the Board determined this issue is without merit.

  • NAVY | DRB | 2003_Navy | ND03-01445

    Original file (ND03-01445.rtf) Auto-classification: Denied

    ND03-01445 Applicant’s Request The application for discharge review was received on 20030909. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. However, they encouraged her and stated that if she had some time in the military and preferably in the military police, her acceptance into the Sheriffs Dept.

  • NAVY | DRB | 1999_Navy | ND99-00023

    Original file (ND99-00023.rtf) Auto-classification: Denied

    950508: 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 discharge General (under Honorable conditions). PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 950807 with a General (under Honorable conditions) by reason of homosexuality – stated he is a homosexual (A). You...

  • NAVY | DRB | 1999_Navy | ND99-00613

    Original file (ND99-00613.rtf) Auto-classification: Denied

    The separation authority determined that homosexuality most clearly described the reason for discharge. To change the Narrative Reason Separation would be inappropriate.In response to applicant’s issue 3, the Board has no obligation to change the applicant's discharge in order to allow him to obtain better employment You should read Enclosure (5) of the Directive before submitting such a complaint.

  • NAVY | DRB | 2002_Navy | ND02-00266

    Original file (ND02-00266.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Copy of DD Form 214 One hundred and seventy-two pages from Applicant's service record PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 950612 - 950802 COG Period of Service Under Review :Date of Enlistment: 950803 Date of Discharge: 970718 Length of Service (years, months,...

  • NAVY | DRB | 2002_Navy | ND02-00009

    Original file (ND02-00009.rtf) Auto-classification: Denied

    I thank the Board for its due consideration of my request.Respectfully submitted, Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of letter of appreciationCopy of Bachelor of Arts with a major in psychology degree dated December 19, 1995Letter from University of Illinois at Chicago dated May 3, 2001 Copy of DD Form 214Six pages from applicant's service record PART II - SUMMARY OF SERVICE Prior Service...

  • NAVY | DRB | 2003_Navy | ND03-00686

    Original file (ND03-00686.rtf) Auto-classification: Denied

    ND03-00686 Applicant’s Request The application for discharge review was received on 20030313. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review.

  • NAVY | DRB | 2002_Navy | ND02-00268

    Original file (ND02-00268.rtf) Auto-classification: Denied

    The applicant requested a documentary record discharge review. 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): Active: None Inactive: USNR (DEP) 840712 - 850709 COG Period of Service Under Review :Date of Enlistment: 850710 Date of Discharge: 881116 Length of Service (years, months, days):Active: 03 04...