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NAVY | DRB | 2006_Navy | ND0600104
Original file (ND0600104.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-FA, USNR
Docket No. ND06-00104

Applicant’s Request
The application for discharge review was received on 20051005. The Applicant requests the Narrative Reason for Separation be changed to “Honorable Conditions.” 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 20060810. 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 reason for discharge shall not change. The discharge shall remain Honorable by reason of homosexuality - homosexual acts.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

“The reason of my discharge is improper because I was not aware that my honorable discharge would be under homosexual act conditions. A discharge was one of two options given to me in avoiding the harassment , mistreatment, and threats from my fellow shipments. If I was aware that I would have received a bad Separation code, Re-entry code, and reason for discharge, I would have made different decisions. I feel that I did not receive the proper information due to negligence, in order to make such a critical decision that has be affecting me for the past six years. I was only informed that I would receive a honorable discharge, and that is why I have an issue with my separation code, Re-entry code, and narrative reason of discharge.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Applicant’s DD Form 215

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: 19971024             Date of Discharge: 19991018

 Length of Service (years, months, days):

         Active: 01 03 11 (Does not include lost time.)
         Inactive: 00 08 14

 Time Lost During This Period (days):
         Unauthorized absence: 22 days
         Confinement:              None

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 8

Education Level: 12                                 AFQT: 57

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0(1)               Behavior: 2.0 (1)                          OTA: 2 .83

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy “E” Ribbon, Meritorious Unit Commendation, Armed Forces Expeditionary Medal.


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

HONORABLE/ HOMOSEXUAL ACT, authority: MILPERSMAN, Article 1910-148 (previously 3630400).
Chronological Listing of Significant Service Events :

980615:  Commenced active duty for a period of 36 months.

990510:  Applicant to unauthorized absence at 0730 on 990510.

 990601:  Applicant from unauthorized absence at 0615 on 990601 (22 days/surrendered.
990617:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
 Award: 30 days restriction and extra duty. No indication of appeal in the record.
990830 :  Applicant’s Voluntary Statement made to MAC(Sel) P_ O_, concerning her homosexual acts.

990909:  Applicant notified of intended recommendation for discharge by reason of homosexual conduct as evidenced by Applicant's statement that she is a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that she engages in attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts and homosexual conduct as evidenced by Applicant engaging in, attempting to engage in or soliciting another to engage in a homosexual act (s). Applicant advised, that if separation is approved, the characterization of service may be general (under honorable conditions).
990921:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
990924:  Commanding Officer, USS DWIGHT D. EISENHOWER (CVN 69), recommended to Commander, Navy Personnel Command that the Applicant be discharge with an honorable by reason of homosexual conduct as evidenced by member’s statement that she is a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts and homosexual conduct as evidenced by member engaging in, attempting to engage in, or soliciting another to engage in a homosexual act (s). Commanding Officer’s comments: “I authorized the investigation into FA’s R_ (Applicant) homosexual activities, and she was informed of DOD policy on homosexual conduct prior to being questioned. FA R_’s (Applicant) conduct is incompatible with the Naval service. I have determined that FA R (Applicant) has no potential for future service and should be separated with an Honorable discharge by reason of homosexual conduct as evidenced by member’s statement that she is a homosexual or bisexual, or words to that effect, which creates a rebuttal presumption that she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts; and homosexual conduct as evidenced by member engaging in, attempting to engage in, or soliciting another to engage in a homosexual act (s).”

991014:  COMNAVPERSCOM directed the Applicant's discharge with an honorable by reason of homosexual act.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19991018 by reason of homosexuality - homosexual acts (A) with a service characterization of honorable. 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 (B and C).

 The Applicant requests a Narrative Reason for Separation change to “Honorable Conditions.” Under its responsibility to examine the propriety and equity of the Applicant's discharge, the NDRB will change the reason for discharge and separation code if such a change is warranted. The records show that on 19990830, the Applicant signed a voluntary statement admitting to homosexual acts. Based on this admission, the Applicant was properly notified on 19990909 of the command’s intent to administratively separate her with a least favorable characterization of service of general (under honorable conditions) by reason of homosexual conduct. On 19990921, the Applicant acknowledged the command’s intent and waived all rights. On 19990924, Commanding Officer, USS DWIGHT D. EISENHOWER (CVN 69) recommended to Commander, Navy Personnel Command, that the Applicant be honorably discharged by reason of homosexual conduct. On 19991014, Commander, Navy Personnel Command, directed discharge. The summary of service clearly documents that homosexual acts was the reason the Applicant was discharged. No other Narrative Reason for Separation or Separation Code could more clearly describe why the Applicant was discharged. Therefore changing the Narrative Reason for Separation and Separation Code would be inappropriate. Relief on this basis is denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces, Board is not authorized to change a reenlistment code. Reenlistment policy of the Navy 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. Since this issue does not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the 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 24, effective 20 May 99 until 23 Aug 00, Article 1910-148 (previously 3630400), Separation by Reason of Homosexual Conduct.

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 .


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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