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NAVY | DRB | 2005_Navy | ND0500969
Original file (ND0500969.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-QM3, USN
Docket No. ND05-00969

Applicant’s Request
The application for discharge review was received on 20050517. The Applicant requests his characterization of service received at the time of discharge changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050915. After a thorough review of all 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 both the characterization of the discharge and the reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I would like to receive my G.I. Bill for college. The reason for my discharge should be because of my sexual preference and nothing more the “misconduct” put in place of that is grossly incorrect. I was reprimanded almost full year prior to discharge and paid for my mistake. I certainly do not want to pay twice for the same offense.”
Documentation
Only the service record was reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19970110 – 19970708               COG
         Active: USN                        19970709 – 20000706               HON

 Period of Service Under Review :
Date of Enlistment: 20000707             Date of Discharge: 20031126

 Length of Service (years, months, days):

         Active: 03 04 19                  (Total service: 06 04 18)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 21

 Years Contracted: 4

Education Level: 12                                 AFQT: 39

 Highest Rate: QM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (4)     Behavior: 2.0 (4)        OTA: 2 .60

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Battle “E”-3, Navy Good Conduct Medal (Period ending 00 Jul 08), National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbons-2, Rifle Marksman Ribbon.


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

GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

000707:  Reenlisted this date for a term of 4 years.
030126:  Retention Warning: Advised of deficiency (Article 86: Unauthorized absence from Safety Standdown and Article 92: Orders violation for intentionally absenting yourself from command sweep urinalysis.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 030126:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
 Violation of UCMJ, Article 92: Failure to obey order or regulation.
          Award: Forfeiture of $874 per month for 2 months, restriction to NAS Whidbey Island, WA for 60 days, reduction to E-4. No indication of appeal in the record.
031027:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of homosexual conduct as evidenced by member’s statement that he is a homosexual or bisexual or words to that effect, which creates a rebuttable presumption that he engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts and separation by reason of misconduct - commission of a serious offense.

031027:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statement to the Administrative Board or the Separation Authority in lieu of a board and the right to obtain copies of the documents used to support the basis for the separation.

031029:  Applicant’s Personal Statement to Commanding Officer, Electronic Attack Squadron 129.

031030:  Commanding Officer, Electronic Attack Squadron 129, recommended discharge with a general (under honorable conditions) by reason of commission of a serious offense and separation by reason of homosexual admission-member declared himself a homosexual. Commanding Officer’s comments: “QM3 S_ (Applicant) has declared himself to be a homosexual and is requesting to be released from Naval Service. Of note, eight months prior to his admission, QM3 S_ (Applicant) was awarded non-judicial punishment for unauthorized absence and failing to report to command urinalysis. Although his performance has been satisfactory otherwise, his prior misconduct and subsequent NJP negates, in my opinion, his eligibility for an honorable discharge. It is therefore strongly recommended that QM3 S_ (Applicant) be immediately discharged from naval service by reason of homosexual admission with a characterization of service of General (Under Honorable Conditions).

031114:  CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031126 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). 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).

After a thorough review of Applicant’s case the Board discovered no impropriety or inequity. When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable. A general (under honorable conditions) 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 nonjudicial punishment (NJP) for violation of UCMJ Article 86 (unauthorized absence) and Article 92 (failure to obey an order) following documented verbal and written counseling for personal conduct, negligence and general lack of judgment . The violation of Article 92 constitutes the commission of a serious offense, resulting in the narrative reason for separation of misconduct. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade in the characterization of service. Relief is not warranted.

The separation process was in strict compliance with the Naval Military Personnel Manual. In accordance with regulation, when a service member is processed for separation, the command is required to process member for all reasons for which minimum criteria are met. The Applicant was dual processed for separation by reason of misconduct due to the commission of a serious offense and by reason of homosexual admission. The Applicant’s misconduct, warranting separation for misconduct due to the commission of a serious offense, is clearly documented in the service record. The separation authority determined that misconduct due to commission of a serious offense most clearly described the reason for discharge. To change the narrative reason for separation would be inappropriate.

The Applicant contends that his discharge was inequitable as he considers the discharge as further punishment following his nonjudicial punishment. The Applicant’s issue is without merit. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP and court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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. The Applicant has not provided post-service documentation for the Board to consider.

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. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 (failure to obey order).

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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