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NAVY | DRB | 2004_Navy | ND04-00760
Original file (ND04-00760.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND04-00760

Applicant’s Request
The application for discharge review was received on 20040413. 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 20041222. After a thorough review of the available 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:

1. “My discharge was inequitable because it was based on lies, hearsay and non-factual rumors.”

2. “Sent me to Gulf War knowing this investigation was underway only to kick me out when I got back. I should have never been kicked out as I never did anything wrong during my enlistment. I was the victim of lies, rumors and a non-merit based witch-hunt.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
VA entitlement ltr for claim on service connected compensation and VA pension, dtd 040220


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890927 - 900123  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900124               Date of Discharge: 910626

 Length of Service (years, months, days):

         Active: 01 05 03
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 69

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 3.50 (2)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: FMF Ribbon, NDSM

 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 :

910604:  Applicant notified of intended recommendation for by reason of homosexuality. Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.
910604:  Applicant advised of his rights and having consulted 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. Applicant did not object to separation.

910604:  Commanding Officer recommended discharge by reason of homosexuality as evidenced by NIS report dtd 910225.

910617:  BUPERS directed the Applicant's under other than honorable conditions discharge by reason of homosexual conduct.

 * Parts of discharge package missing from service record.

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910626 with under other than honorable conditions characterization by reason of homosexual conduct (A). 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 (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issues 1-2. The Commanding Officer’s letter of 19910604 citing the NCIS report concerning the Applicant is credible evidence that the Applicant engaged in, attempted to engage in or solicited another to engage in a homosexual act or acts, substantiating the misconduct for which he was separated. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant did not object to the separation, consulted with counsel and waived his right to an Administrative Board. The evidence of record does not support the Applicant’s allegations, that the discharge was based on lies, hearsay, non-factual rumors or the result of “witch-hunt.” Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. 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. 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023



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