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NAVY | DRB | 2004_Navy | ND04-01085
Original file (ND04-01085.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND04-01085

Applicant’s Request
The application for discharge review was received on 20040625. 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 representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112. 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: UNCHARACTERIZED/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. “YOUR HELP IN THIS SITUATION IS GREATLY APPRECIATED. IF YOU NEED ANY ADDITIONAL INFORMATION, DO NOT HESSITATE TO CONTACT ME.”

2. “I would like my discharge changed from “uncharacterized” to “Honorable”. My career of choice is to become a Law Enforcement Officer. In the State of Florida, one may become a Law Enforcement Officer as long as he has NOT received a “dishonorable discharge” from any of the Armed Forces of the United States (Florida Statue 943.13). I sponsored myself through the 22-week Basic Recruit Law Enforcement Academy at a cost of $1,970 plus about $300 in initial testing fees and $100 in the certification test. Based on the afore mentioned Florida Statue, I have now been informed that some police agency’s will not hire officers with les than honorable discharges. During my short enlistment, my performance was exemplary. Performing my duties, above average, often complimented for good performance. My character and performance were not an issue for my discharge from the service. Based on the circumstances regarding my discharge from the Navy, I see no significant reason why the discharge should not be changed to “honorable”. Your consideration and favorable response would be greatly appreciated and would help me to continue my goals in a career in Law Enforcement.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from Applicant
Florida police qualification requirements (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     020622 - 021007  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 021008               Date of Discharge: 030303

 Length of Service (years, months, days):

         Active: 00 04 26

 Age at Entry: 17                          Years Contracted: 4

Education Level: 12                        AFQT: 82

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 2.25

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

 Chronological Listing of Significant Service Events :

030212:  Applicant’s Voluntary Statement made to MA2(SW) S_ L.G., concerning his homosexuality.

030214:  Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by Applicant's statement that he admitted to being a homosexual. Applicant advised, that if separation is approved, the characterization of his service may be general.
030214:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
030214:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of homosexuality as evidenced by his statement that he had engaged in homosexual acts. Commanding Officer’s comments (verbatim): “SA L---’s conduct does not meet standards. Because of his behavior and in support of the Navy’s policy on homosexual conduct, I recommend administrative separation with a characterization of General, in accordance with the MILSPERMAN 1910-148.”

030224:  CNMPC directed the Applicant's discharge as Uncharacterized (Entry Level Separation) by reason of homosexual admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030303 with an uncharacterized discharge by reason of homosexuality - homosexual admission (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 1-2: Per Department of Defense and naval regulations homosexual conduct exists
if a service member has stated that he/she is a homosexual or bisexual, or made other statements indicating a propensity or intent to engage in homosexual actions. On 20030212 the Applicant provided an unsolicited statement that he had previously committed homosexual acts thus substantiating the reason for his discharge. By regulation, members discharged within the first 180 days of enlistment are given characterization of service as “uncharacterized” unless there were unusual circumstances regarding performance or conduct which would merit an “honorable” characterization. The Applicant’s service record did not contain any unusual circumstances during his less than five months in the military to warrant a change of discharge to “honorable.” Relief denied.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. 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 considered the Applicant’s discharge proper and equitable.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, civilian employment, educational pursuits, etc., an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

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), re-issued October 2002, effective 22 August 2002 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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