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NAVY | DRB | 2005_Navy | ND0500059
Original file (ND0500059.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND05-00059

Applicant’s Request
The application for discharge review was received on 20041007. 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 personal. 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 hearing in the Washington, D. C. area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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 reason for discharge shall not change. The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL) /Homosexuality – stated he or she is a homosexual or bisexual, authority: MILPERSMAN, Article 3630400.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues were submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Applicant’s DD Form 214
Copy of Marriage Certificate, dtd 22 Jun 2002
Copy of High School Diploma, January 31, 1991
Copy of Birth Certificate, issued/dtd 12-19-97
Copy of DD-214 Request Form, not dated
Copy of Authorization for Release of Information, dtd 020528
Copy of Certificate of General Discharge, dtd 30 January


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None *
         Active: None

 Period of Service Under Review :
Date of Enlistment: 881107      *        Date of Discharge: 900130

 Length of Service (years, months, days):

         Active: 01 02 23
         Inactive: 00 00 00

 Age at Entry: 18                          Years Contracted: *

 Education Level: *                         AFQT: *

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (1)             Behavior: 3.00 (1)                OTA: 3.05

 Military Decorations: None

 Unit/Campaign/Service Awards: USCG SOS Ribbon, Battle E Ribbon

 Days of Unauthorized Absence: 14

* Unable to verify, enlistment contract not in service record.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):
UNDER HONORABLE CONDITIONS (GENERAL)/Homosexuality – stated he or she is a homosexual or bisexual, authority: MILPERSMAN, Article 3630400.

 Chronological Listing of Significant Service Events :

890729:  Applicant UA as of 0500, 890729.

890811:  Applicant from UA, returned to military custody at 2006, 890811.

890817:  NJP for violation of UCMJ, Article 86, Unauthorized Absence and violation of UCMJ, Article 87, Missing Movement..
         Award: Forfeiture of $349.00 per month for 2 month(s), restriction and extra duty for 45 days. No indication in the record of appeal.

890925:  Retention Warning: Advised of deficiency (CO’s Non-Judicial Punishment for Violation of the UCMJ, Art 86 – Unauthorized absence and Art 87 – Missing Ship’s Movement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
891010:  Applicant’s Voluntary Statement made to CDR J.A. H_, USS Ft McHenry (LSD-43), concerning his homosexuality.

891013:  NJP for violation of UCMJ, Article 86, Unauthorized Absence from 0700, 891010 to 1530, 891010.
         Award: Forfeiture of $250.00 per month for 2 month(s), reduction in rank to FR.

891013:  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.
891016:  Applicant advised of 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.

891017:  Commanding Officer recommended discharge with type warranted by service record which would be under honorable conditions (general) Commanding Officer’s comments (verbatim): “ I have no reason to doubt the veracity and sincerity of FR V_ ‘s comments. His previous periods of unauthorized absence were largely due to his involvement with member’s of San Diego’s homosexual community. He has no further potential for continued Naval Service and his retention may be cause for future embarrassment.“

891024:  CNMPC directed the Applicant's discharge with characterization as type warranted by service record by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900130 with under honorable conditions (general) by reason of homosexual conduct – stated that he is a homosexual or bisexual. (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).

The Applicant introduced no decisional issues for consideration by the Board.

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. There is no evidence of impropriety or inequity in the Applicant’s discharge. The basis for separation is clearly documented. Therefore, relief is denied.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A General discharge 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. The Applicant’s service was marred by 2 nonjudicial punishment proceedings for violations of Articles 86 (UA for 14 days) and 87 of the UCMJ. Further, the Applicant made a voluntary statement admitting his homosexual orientation. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The summary of service clearly documents that Applicant’s admission that he is a homosexual was the reason the applicant was discharged. No other Narrative Reason for Separation more clearly describes why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief based on this issue is not warranted.

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 following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.



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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