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NAVY | DRB | 2004_Navy | ND04-01157
Original file (ND04-01157.rtf) Auto-classification: Denied


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


ex-SR, USN
Docket No. ND04-01157

Applicant’s Request
The application for discharge review was received on 20040714. 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 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 4-1 that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN 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:

 “In my defense I wish to address some points, then explain my reasoning.

1. The Captains’ Mast/hearing, for my discharge allowed heresay, I believe I was discharged unfairly because of personal opinion s heard, not actual character review

2. At the time of my discharge, President C_ was just finishing his “Don’t ask don’t tell” policy.
I believe I was discharged just as an example.

3. At the time of my supposed wrong doing, I was happily married and four months and a half months pregnant. I continued my monogamous heterosexual relationship for another ten years, upon which I had another child.

4. My behavior during the incident was duly noted as intoxicated, and I was questioned about my actions almost five months later.

5. Nobody was harmed, and my record will show I have no other incidences.

I have remained a good citizen with a clean record and am now in a second heterosexual/monogamous marriage to a United States Marine, which I am a good and proud wife. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920826 - 920830  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 920831               Date of Discharge: 930818

 Length of Service (years, months, days):
         Active: 00 11 18
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 52
Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.40 (1)    Behavior: 1.00 (4)                OTA: 2.80

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/HOMOSEXUAL ACT, authority: MILPERSMAN, Article 3630400.

 Chronological Listing of Significant Service Events :

930216:  Psychiatric evaluation: Assessment: AXIS I: Adjustment disorder with features of anxiety and disturbed conduct. AXIS II: Histrionic traits versus disorder. AXIS III: Vaginal Chlamydia infection, treated with antibiotics. AXIS VI: Moderate. AXIS V: Sixty. Moderate symptoms.
930526:  NJP for violation of UCMJ, Article 92 (2 specs): (1) Violate a lawful general order, to wit: Department of the Navy policy on sexual harassment as outlined in SECNAVINST 5300.26B dated 930106 by wrongfully grabbing Seaman Recruit H_ by the back of the neck and hair with her hand and force SR H_’s head down to perform oral sex on her, (2) Violate a general order, to wit: Department of the Navy policy on sexual harassment as outlined in SECNAVINST 5300.26B dated 930106 by wrongfully stating to SN V_ that she would like to go to bed with her, violation of UCMJ, Article 128: Assault consummated by battery on 930117, to wit: unlawfully grab a SR H_ by the back of the neck and hair with her hand and forced her head down to perform oral sex on her, violation of UCMJ, Article 134 (6 specs): (1) Indecent assault upon a SR H_ by kissing her on the mouth, touching her breast, grabbing and putting the SR H_’s face in her crotch, and licking and rubbing the SR H_’s leg, (2) Indecent assault on a SR H_ by grabbing the SR H_ by the back of the neck and hair and forcing her to perform oral sex on her, (3) Indecent act with a SR H_ by kissing her on the lips and neck, touching her breast, grabbing and putting the SR H_’s face in her crotch, and licking and rubbing the SR H_’s leg, (4) Indecent act with a SR H_ by grabbing her by the back of the neck and hair and forcing the SR H_’s head down to perform oral sex on her, (5) Wrongful solicitation of a SN V_ to engage in indecent acts with another by telling the SN V_ that she would like to go to bed with her, (6) Disorderly conduct was of a nature to bring discredit upon the Armed Forces.
         Award: Forfeiture of $407.00 per month for 2 months. No indication in the record of appeal.

 930526:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense as evidenced by your NJP on 930526 when you were found guilty of indecent assault, indecent acts, assault consummated by battery, sexual harassment; homosexuality as evidenced by your statement and acts; misconduct due to a pattern of misconduct as evidenced by your NJP on 930526 when you were found guilty of nine or more violations of the UCMJ within the current enlistment. Applicant advised, that if separation is approved, the characterization of service may be under other than honorable conditions.
930526:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930617:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed homosexual acts, misconduct due to commission of a serious offense, and misconduct due to a pattern of misconduct and that such acts warranted separation, and recommended discharge under other than honorable conditions.

930707:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, misconduct due to homosexuality and misconduct due to a pattern of misconduct.
930727:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of homosexuality.
930805:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of homosexuality.
930810:  BUPERS 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 19930818 under other than 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).
Issues 1, 3-5: In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violating the UCMJ, Articles 92, 128 and 134 thus substantiating the misconduct . The Applicant’s has not provided any evidence to support her claim that her Captain’s Mast was unfair and that she was denied due process. The Applicant was provided the opportunity to present her case to an administrative board. The administrative board found, by unanimous vote, that the Applicant had committed homosexual acts, misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct and that such acts warranted separation, and recommended discharge under other than honorable conditions.

Issue 2: After reviewing the case, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the recommendation for discharge under other than honorable conditions. While she may feel that she was unfairly targeted, the Applicant’s summary of service clearly reflects the Applicant ’ s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated she was unsuitable for further service. 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. E vidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided verifiable documentation of good character and conduct to mitigate her 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 her 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 5, effective 05 Mar 93 until 21 Jul 94, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXULAITY.

B. 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.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

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

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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