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NAVY | DRB | 2006_Navy | ND0600276
Original file (ND0600276.rtf) Auto-classification: Denied


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

ex-AOAN, USN
Docket No. ND06-00276

Applicant ’s Request
The application for discharge review was received on 20051130 . The Applicant requests the Narrative Reason for Separation be changed to “ Condition that interfered with performance of duty .” The Applicant requests a do cumentary 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 20061012 . After a thorough review of the 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 the reason for discharge shall not change. The discharge shall remain H onorable by reason of homosexual admission.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant ’s issues, as stated on the application:
“U pon entry into the Navy on May 6, 2002, I elected to participate in the Montgomery GI Bill - Active Duty (Chapter 30, Title 38, United States Code) . The required pay reductions were met during my first year of service . I successfully completed basic and technical training and was assigned to a ship.

I enjoyed my military service and I fully intended to complete my first term of enlistment until I began experiencing sexual harassment from a supervisor that over time seemly spread to others . To be clear, there were no overt suggestions or displays of my sexual orientation nor were there any disciplinary problems while in the Navy . The harassment reached a level to where it became very difficult to effectively perform my job and comfortably live in the close quarters on a ship . The environment became so stressful that I seriously explored pursuing an Equal Employment Opportunity (EEO) complaint . After talking to my chief, my division held sensitivity training addressing the issue but it served to draw more attention to the issue than it did solving problems . When I discussed the possible-filing of the complaint with superiors, it was suggested that I separate from Na vy. While I found this proposal disappointing, I ne v ertheless recognized the merits of the idea because there did not seem to be many available options . Before accepting the proposal, I discussed this matter with numerous personnel in my chain of command and in personnel administration all of whom assured me that I would retain eligibility to the GI Bill with the honorable discharge I was to receive.

I recently enrolled in college and applied for veterans education benefits but learned that I was ineligible (see attached correspondence) due to the early and “narrative reason for separation.” I was not familiar with the program eligibility requirements but I accepted the assurances that being discharged would not adversely affect my eligibility to the GI Bill . Given the nature of this matter, there was little to no documentation available at least to me . I believe the Navy discharged me knowing the separation would be punitive for certain purposes . I am respectfully requesting a change in the narrative reason for separation that is in the spirit of the agreement I had with the Navy.
Respectfully submitted . ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214
 Letter to Applicant from Department of Veterans Affairs, dtd August 19, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20020130 - 20020505       COG
          Active: None

Period of Service Under Review :
Date of Enlistment: 20020506              Date of Discharge: 20040225

Length of Service (years, months, days):

          Active: 01 09 20
          Inactive: None
Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Entry: 1 8

Years Contracted: 4 ( 12 -month extension)

Education Level: 12                                 AFQT: 75

Highest Rate: AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 .0 ( 3 )                        Behavior: 3.0 (3)                 OTA: 3.0 0

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214 ): National Defense Service Medal, Expert Pistol Shot Medal


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

HONORABLE/HOMOSEXUAL ADMISSION , authority: MILPERSMAN, Article 1910-148 (previously 3630400).

Chronological Listing of Significant Service Events :

030815:  USS KITTY HAWK (CV 63) Psychological Screening.
         Situation: Patient referred for evaluation of symptoms of depression by Chaplain R_. Reported feelings of depression began 6 weeks ago. Stated he is sleeping less: 6 hours/night weekdays, 8 hours/night on weekends. Drinks about 12 servings of beer/day. Lacks interest in exercising, leisure activities. Denied changes in appetite or energy, denied sucicial ideations. Patient feels like he is wasting his time while he waits to puruse either SEAL training or a career in cinematography. He was to be gin SEAL training last year, but dropped out because of family problems. Felt depressed several months after dropping out. Reported history of treatment for attention problems: took Ritalin 25 mg 2x/day from K to 6 th Grade.
         Assessment: Patient is having difficulty finding motivation to work his obligated service in the Navy and is still dealing with the disappointment of leaving SEAL training prematurely.
         AXIS I: 309.0 Adjustment Disorder with Depressed Mood
         AXIS II: None
         AXIS III: None
         AXIS IV: Job dissatisfaction
         AXIS V (current): 75/100 = Mild symptoms
         Safety: Patient is considered fully competent to be discharged to his own custody and does not present a danger to self or others.
         Fitness for Duty: Fit for full duty.
         Plan:
1.       Patient was advised to seek out ways to use his time wisely to prepare for the careers that interest him, i.e., resume regular work-out schedule, take college courses, write stories.
2.       Refer for departmental DAPA screening.
3.       Follow-up PRN.
031015:  USS KITTY HAWK (CV 63), Psychologist Evaluation.
         Situation: The Chaplain sent [Applicant] to medical to make an appointment to see the psychologist because the patient disclosed depressive symptoms. He did not endorse suicidal ideation to the Chaplain . However, while being screened by the Psych Tech he endorsed active and chronic suicidal ideation with a plan to overdose on pills. He was guarded and would not tell the Psych Tech much information other than he was unhappy in the Navy, especially in his rate, and his girlfriend broke up with him 3 weeks ago and he wants to be home with her… He feels that he is wasting his time in the Navy and would rather be in college ….

Undated:         USS KITTY HAWK (CV 63) Ship’s Psychologist follow-up evaluation by LT T_ S_, Ph.D., USN.
         Assessment: [Applicant] continues to experience the same depressive symptoms in response to the same stressor that brought him to Mental Health in August 03. He is not adjusting to his current situation on the USS Kitty Hawk and would rather be in BUDS training or home with his family. He is not suffering from PTSD or Major Depressive Disorder. Malingering may need to be ruled out in the future. He understands the administrative route he needs to take to request a transfer and in the meantime there is psychological assistance available to him for his other problems. It is dubious a this time that he has the motivation to make the most of the current situation and his benefit from therapy may be minimal.
         Diagnosis:
         AXIS I: 309.0 Adjustment disorder with Depressed Mood; 303.9 Alcohol Dependence
         AXIS II: Deferred
         AXIS II: None
         AXIS IV: Routine Military Stress
         AXIS V (current): 70/100 = Mild symptoms

         Plan/Recommendations:
1.       [Applicant] is psychologically fit for full duty and suitable for continued military service. He is fully responsible for his actions and is a low risk of d anger to himself or others.
2.       His diagnosis and treatment options were discussed with him. He is referred again to his DAPA for alcohol treatment. He will follow-up with LT S_ weekly for individual therapy. He will follow-up with LT C_ as directed. Pat i ent understood and agreed.
3.       P.O.C. is LT T_ N. S_, at extension 5020.
031112:  USS KITTY HAWK (CV 63) Ship’s Psychologist follow-up evaluation by LT T_ S_, Ph.D., USN.
         Situation: Follow-up for Adjustment D isorder. Patient reported feeling better on the medication but has had difficult week. His uncle died and he did not have enough leave to go to the funeral. He is -15 days. He is also alleged to have assaulted a shipmate and performed sexual acts on him. He adamantly denies this and believes he will be cleared during the investigation but is reportedly being harassed and called “faggot.” He described how he is picked on by his petty officer leadership. Discussed alternative methods and confronting them. He continues to be help-seeking and help-rejecting. However, he appears brighter and even admits to feeling better. He was given suggestions for being more assertive with his petty officers and less confrontational.
         Assessment: Brief depressive reaction
         Plan: 1. Fit for full duty, fully responsible for his actions and he is a low risk of suicide or homicide. 2. Will continue instructing him in better coping methods.
UNDATED :         Applicant ’s Voluntary Statement in accordance with MILPERSMAN 1910-500, c oncerning his homosexuality: “I HAVE BEEN ADVISED ON THE NAVY’S “DON’T ASK, DON’T HARASS, DON’T PURSUE” POLICY. I UNDERSTAND THAT SHOULD A SERVICE MEMBER REVEAL THAT HE IS A HOMOSEXUAL, ENGAGES IN HOMOSEXUAL CONDUCT , AND INTENDS TO ENGAGE IN HOMOSEXUAL CONDUCT, THAT ADMINISTRATIVE SEPARATION FROM THE NAVY IS MANDATORY I HAVE CONSULTED WITH A NAVY DEFENSE COUNSEL I KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY, ADMIT THAT I AM A HOMOSEXUAL AND THAT I ENGAGE IN HOMOSEXUAL CONDUCT. I UNDERSTAND THAT THIS STATEMENT WILL RESULT IN MY SEPARATION FROM THE NAVY. I HAVE ALSO BEEN ADVISED THAT THE NAVY DOES NOT TOLERATE HAZING OR ANY SORT OF MALTREATMENT. I THANK YOU IN ADVANCE FOR YOUR ASSISTANCE IN ENSURING THAT MY REMAINING TIME IN THE NAVY IS SAFE AND HARASSMENT FREE. I STAND READY TO ASSIST IN ANY MANNER. [APPLICANT].” [Extracted from Commanding Officer’s message dated 040115.]

040106 :  Applicant notified of intended recommendation for administrative separation by reason of homosexual conduct as evidenced by Applicant’s statement that he is a homosexual , or words to that effect, which creates a rebuttable presumption that he has a propensity to engage in, or intends to engage in homosexual acts. Applicant advised, that if separation is approved, the characterization of service may be honorable conditions. [Extracted from Commanding Officer’s message dated 040115.]

040106 :  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. [Extracted from Commanding Officer’s message dated 040115.]

040115 :  Commanding Officer, USS KITTY HAWK (CV-63) , recommended Applicant’s honorable discharge by reason of homosexual conduct as evidenced by Applicant’s statement the he is a homosexual, or words to that effect, which creates rebuttable presumption that he has a propensity to engage in, or intends to engage in homosexual acts. Commanding Officer’s comments: “ AOAN P_( Applicant ) meets th e requirements for processing for homosexual conduct because he made a statement that he is homosexual as defined by Navy regulations and he intends to commit homosexual acts if he remains on active duty this statement is contrary to the Navy’s policy and requires AOAN P_( Applicant ) to be separated from naval service. I recommend AOAN P_( Applicant ) be separated from the naval service with an honorable discharge. ”
040210 :  CNPC directed the Applicant 's honorable discharge by reason of homosexual admission.

Service Record contains a partial Adm inistrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040225 by reason of homosexual admission (A ) with a service characterization of honorable. 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 Board presumed regularity in the conduct of governmental affairs ( D ).

The Applicant implies that his narrative reason for separation should be changed to make him eligible to receive the GI Bill. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The evidence of record shows, and the Applicant does not deny, that the Applicant admitted that he was a homosexual and intended to engage in homosexual conduct. The Applicant’s statement also reveals that he consulted with counsel prior to his statement of admission and was aware that his admission would result in separation from the Navy. The summary of service clearly documents that homosexual admission was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Additionally, the Applicant should be aware that the his narrative reason for separation is considered neither punitive nor adverse and that the Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants a change of narrative reason for separation 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. Relief denied.

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. 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), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.



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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