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NAVY | DRB | 2004_Navy | ND04-00873
Original file (ND04-00873.rtf) Auto-classification: Denied


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

ex-HM3, USN
Docket No. ND04-00873

Applicant’s Request
The application for discharge review was received on 20040506. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to remove “Homosexual Act” and change the re-enlistment code. 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 20041029. 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 and narrative reason of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MILPERSMAN, Article 3630400.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1. I was discharged even after a board recommended retention. Furthermore, the discharge was issued as “General –under honorable conditions.” Which has prevented me from being able to use my G.I. Bill which I paid into, to further my education. I would like an honorable discharge, please.

2. The “Reason for Discharge” states “Homosexual Act.” It is offensive to me and anyone who sees my DD-214. It is something I wish to have removed, please.

3. My re-enlistment code is such that it prevents me from ever joining the service again. In this day and time with all of the terrorist threat to our country, with the Iraq conflict and Afghanistan, I would not hesitate for one single second to jump back in and defend this great country of ours if the moment came when my service was needed.

Comments: I was issued my good conduct service medal just prior to my abrupt discharge. I worked very hard in the Navy. It was my passion it was my home. In a short period of time I earned many awards, letters of appreciation even from the president and prestigious assignments due to my hard work. I hope it is noted.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Two Administrative Discharge Board questionnaires
Letter of recommendation from HM1 (AW) R_ R. R_, USN (2 copies)
Letter of recommendation from T_ G. P_, M.D.
Letter of recommendation from A_ R. A_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     901017 - 901217  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 901218               Date of Discharge: 950308

 Length of Service (years, months, days):

         Active: 04 02 21
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 79

 Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (6)    Behavior: 3.90 (6)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, LA

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MILPERSMAN, Article 3630400.

 Chronological Listing of Significant Service Events :

930424:  Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by the Applicant's engaging in homosexual acts. Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.
930424:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
940617:  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 he should be retained in the naval service.

940708:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of homosexuality as evidenced by engaging in homosexual acts in a public place. This act is evidenced by Applicant’s arrest by the Pensacola Police Dept., and by his Nolo Contendere plea and subsequent sentencing from the Escambia County Criminal Court for the charges of exposure of sexual organs and lewd and lascivious behavior. I do not agree with the Board’s finding that the Applicant should be retained. I also believe that the possibility exists for the Applicant to commit similar acts in the future. This is based on the testimony of the arresting officer.

940830:  CHNAVPERS recommended separation under honorable conditions (general) and did not concur with the Administrative Discharge Board’s recommendation that the Applicant be retained for further service.
950216:  Assistant Secretary of the Navy (M&RA) approved the recommendation to discharge the Applicant under honorable conditions (general) by reason of homosexual conduct.

950223:  BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950308 with a general (under honorable conditions) by reason of homosexuality – homosexual act (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. The Applicant’s chain of command followed proper and equitable procedures to administratively separate the Applicant despite an Administrative Discharge Board’s recommendation for retention. 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. T he Applicant’s service was marred by his public commission of homosexual acts as evidenced by his conviction by the Escambia County Criminal Court. 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. The positive aspects of the Applicant’s record do not mitigate his misconduct. An upgrade to honorable is inappropriate. 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.
Issue 2. There is credible evidence in the record that the Applicant committed homosexual acts. The statements and supporting documentation provided by the Applicant do not refute the presumption that the acts occurred. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Furthermore, the evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief to the narrative reason for separation is therefore denied.

Issue 3. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety 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, or good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 9, effective 22 Jul 94 until 02 Oct 96, Article 3630400, SEPARATION OF ENLISTED PERSONNEL 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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