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NAVY | DRB | 2006_Navy | ND0600015
Original file (ND0600015.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-MNSR, USN
Docket No. ND06-00015

Applicant’s Request
The application for discharge review was received on 20050928. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.
In the acknowledgement letter, the Applicant was informed that she was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20060628. 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 Under Other Than 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 and attached letter:

“The item that I was discharged was under myself being misleading and not understanding myself. I was confused and I was wrong…I was young and was Foolish for saying I was a lesbian. I was saying it for my husband at the tine so we would stay together. After all I gave up in Military my husband left any way and I had done a very huge mistake in not being truthful with my career in Navy. I am absolutely wrong in what I did and I am currently happily married to an E-6 in the U.S.A. Army for last 5yrs. I was young and very stupid, and gullible when I was younger. I did it for my ex-husband D_ R_, he asked me to mislead the Navy and get out early so we could stay together. He was getting out and going home to New Mexico, he said it was our only way to stay together. I do not lay all the blame of him, I did it and I was so absolutely wrong. I wish I could turn it all back and stay in the Navy for 20 yrs and retire. I loved the service, and I was wrong for doing what I did. I ask for forgiveness and an Honorable discharge, or a general under honorable conditions. I want to redeem myself and hopefully re-up and full-fill my dream of my Navy career. Please forgive my young gullible, stupidity and allow the new older and smarter woman shine through.

Thank You,

B_ J_ S_ (Applicant)

I further add I am not a lesbian or bi-sexual Female, Never have been, Never will be.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19871208 – 19880807               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19880808             Date of Discharge: 19910107

 Length of Service (years, months, days):

         Active: 02 04 30
         Inactive: None

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

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 4

Education Level: 12                                 AFQT: 57

 Highest Rate: MNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.3 (2)              Behavior: 3.2 (2)                 OTA: 3.0
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

900226:  Retention Warning: Advised of deficiency (Failure to pay lawful debts, i.e. Citicorp Diners Club Government Credit Card Acct # and Substance Performance), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900227:  NJP for violation of UCMJ, Article 121:
         Specification 1: Did from 89JUN14 to 89SEP25, steal property and services, a value of about $1302.23, by misuse of government contract credit card.
         Specification 2: Did from 89JUN14 to 89SEP25, wrongfully appropriate personal property and services, a value of about $1302.23, by the misuse of a government contract credit card.
         Award: Reduction to E-2. No indication of appeal in the record.

900731:  Medical evaluation by R_ A. B_ Jr., LCDR MC USNR: In MVA 29Jul90 – 1700 per patient history states she was drinking beer and Rum (unknown amount). Does not remember getting in car. Had MVA taken into custody charged with DUI & wreck less driving. States she slept through yesterday. Awakened at 1200 yesterday and does not remember. Remembers awakening at 1500 yesterday. Presents today with c/o headache left side of face, neck is stiff and sore. C/o pain in both lower ribs. Did not see any bruises. Denies n/v. Had some diarrhea.
         Assessment: Contused ribs s/p MVA, Competent to stand duty
         Plan: CXR with rib detail Neg
         RX: Motrin 400 mg QID 20/2
         Tylenol #3, for severe pain
         Patient denies any previous ETOH abuse. Denies any suicidal or homicidal ideation. Patient is competent and responsible for her actions.

 900906:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
 Violation of UCMJ, Article 92: Failure to obey lawful general order by wrongfully consuming alcoholic beverages while under the legal age.
Violation of UCMJ, Article 111: Drunken or reckless driving.
         Award: Forfeiture of $200.00 pay per month for 1 month, restriction for 14 days and correctional custody for 7 days. No indication of appeal in the record.
901010:  Medical evaluation by J_ A. N_, LT, MC: 19 year old married white female with 2 years and 2 months has recent complaints of a diverse combination of anger, anxiety, depression – marital problems and sexual identity issues. She left her husband several months ago & now reveal she is homosexual, involved with another woman. Her story is confirmed by husband. Although she alleged she would like to stay in USN- she realize that her disclosure of homosexuality is a prelude to admin separation.
 Mental exam: no acute anxieties, no psychopathology, mood axiom; appear appropriate. No pyschosis and no signs of depression; no ETOH abuse- although she does admit to DUI and there is an ETOH abuse by history.
Impression: no diagnosis. Sexual identity issues (homosexuality)
Fit for duty, separation by reason of homosexuality recommended to be expeditiously pursued.

901203:  Applicant notified of intended recommendation for discharge with the characterization of service may be under other than honorable conditions by reason of homosexuality as evidenced by the member’s admission to being a homosexual or bisexual and by reason of misconduct, commission of a serious offense.
901203:  Commanding Officer, Mobile Mine Assembly Group, Unit Eleven, recommended to Commander, Naval Military Personnel Command that the Applicant be discharged under other than honorable conditions by reason of member’s statement of homosexuality, misconduct due to commission of a serious offenses as evidenced by UCMJ Article 92, 111 and 121. Commanding Officer’s comments: “The case involving MNSR R_ (Applicant) has perpetuated over a nine month period, starting with financial problems from misuse of her government credit card, marital problems with her spouse, arrest on a military installation for DUI and reckless driving to absence without leave. Finally, she went to medical for stress related problems and admitted to her homosexuality.
Seaman Recruit R_ (Applicant) is sporadic in her attitude towards the Navy and the military lifestyle. She can at times be an earnest hardworking individual, then completely defy all responsibility and authority. Based upon the documented pattern of misconduct, her request for separation, and her admittance to being a homosexual, separation from the Naval Service is recommended.






This command has pursued every reasonable avenue to assist this individual, from personal counseling to assistance by the Family Service Center in handling her stress related problems. However, receptiveness for assistance has been for short periods of time, resulting in reoccurrence. This separation action is considered the only recourse left for Seaman Recruit R_ (Applicant) be separated from service under other than honorable conditions.”

 901204:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

901218:  COMNAVMILPERSCOM , directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19910107 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than 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).

The Applicant states she would like an upgrade in her discharge characterization to honorable or general. 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. An under other than 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. One retention warning and two nonjudicial punishment proceedings for violations of UCMJ Articles 121 (larceny-2specs), 86 (unauthorized absence) , and 92 (failure to obey a lawful general order) marred t he Applicant’s service. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86, 92 and 121 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.
The Applicant states, “I was young and was foolish for saying I was a lesbian”. The Applicant also contends that she was not and is not a homosexual and admitted to being a homosexual for the sole purpose of obtaining a discharge from the US Navy. The Applicant’s in-service statement to her chain-of-command and competent military medical authorities, that she was a homosexual created a rebuttable presumption that she engaged in, or had the propensity to engage in homosexual acts. The Applicant did not submit any evidence to rebut this presumption prior to her discharge. The statement contained in the application that the Applicant’s admission was due to her youth and immaturity and to obtain a discharge from the US Navy was found to be insufficient justification to warrant a change in the reason for discharge. Relief denied.

The Applicant states she wants to redeem herself and re-enlist in order to fulfill her dream of a navy career. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg


784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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 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 any post-service documentation for the Board to consider. Relief denied.

The following is 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 she desires further review of her case.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 violations of UCMJ, Articles 121(larceny), 92 (failure to obey a general order), and 86 (unauthorized absence).

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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