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NAVY | DRB | 2006_Navy | ND0600302
Original file (ND0600302.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND06-00302

Applicant’s Request
The application for discharge review was received on 20051213 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions) and the Narrative Reason for Separation be changed to “ honorable . ” 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 he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing are held at the Washington Navy Yard, Washington, D.C . Applicant did not respond.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20061103 . 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of homosexuality - homosexual acts .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

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

“ My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse actions . After all this time since my separation , I feel the benefits I deserve are due to me ”
Documentation
Only the service and medical record s were 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)     19800828 - 19800916       COG
          Active: USN      19800917 - 19870212       HON
Period of Service Under Review :
Date of Enlistment: 19870213              Date of Discharge: 19900215

Length of Service (years, months, days):

          Active: 0 3 00 0 3
         Inactive: None

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

Age at Entry: 24

Years Contracted: 3

Education Level: 12                                 AFQT: 55

Highest Rate: MS2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 6 ( 5 )     Behavior: 3 . 6 ( 5 )                 OTA: 3 . 6 0

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): First Good Conduct Award for period ending 890811, Sea Service Deployment Ribbon


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

UNDER OTHER THAN HONORABLE CONDITIONS/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts , authority: MILPERSMAN, Article 3630400.
Chronological Listing of Significant Service Events :

870213 :  Reenlisted this date for a term of 3 years.
891019:  Department of the Navy Incident/Complaint Report: Forcible sodomy, BEQ 229, Room 107, NCEP Wahiawa, HI. H_ (Applicant) indecent acts with another, BEQ 229, Room 107, NCEP Wahiawa, HI. Y_ (Restricted).

891108:  Applicant’s Voluntary Statement made to LT R_, concerning his homosexuality.
891109:  NJP for violation of UCMJ, Article 125: (2 specs),
 Spec 1: In that MS2 C_ L. H_ (Applicant), US Navy on active duty, NAVCAMSEASTPAC, Wahiawa, HI, did onboard NAVCAMSEASTPAC, on or about 8909 3 0, commit sodomy with LCpl R_ H. Y_, JR., USMC.
 Spec 2: In that MS2 C_ L. H_ (Applicant), US Navy on active duty, NAVCAMSEASTPAC, Wahiawa, HI, did onboard NAVCAMSEASTPAC, on or about 891016, commit sodomy with LCpl R_ H. Y_, JR., USMC.
 Award: Forfeiture of $541.20 pay per month for 2 months, extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
891201 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of under other than honorable conditions b y reason of homosexuality due to Applicant engaging in, attempting to engage in, or soliciting another to engage in homosexual acts and evidenced by Commanding Officer’s Non-Judicial Punishment for violation of UCMJ Article 125.

891204 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation , the right to submit statement on own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened .
900109 :  Commanding Officer, Naval Communication Area Master Station, Eastern Pacific recommended to Commander, Naval Military Personnel Command that Applicant be discharge d by reason of homosexuality .
900130 :  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of homosexuality. CNMPC directed discharge within 5 work days after receipt of this authority.

900215:  DD Form 214: Applicant discharged Under Other Than Honorable Conditions by reason of Homosexuality – engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19900215 by reason of homosexual conduct . (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 contends that his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse actions. Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. There is irrefutable evidence that the Applicant’s conduct during his time in the Navy was not honorable. In this enlistment, t he Applicant was awarded nonjudicial punishment (NJP) on 19891109 for a violation of 2 specifications of UCMJ Article 1 25 Sodomy . Each v iolation of Article 125 is a serious offense for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B) and typically warrants a characterization of service as under other than honorable conditions . The Applicant was properly notified , processed and discharged under other than honorable conditions by reason of homosexuality due to Applicant engaging in, attempting to engage in, or soliciting another to engage in homosexual acts . Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy . Therefore, the Board concluded that the Applicant’s discharge was proper and equitable as issued. Relief denied.

The Applicant requests a Narrative Reason for Separation change to “honorable.” Under its responsibility to examine the propriety and equity of the Applicant's discharge, the NDRB will change the reason for discharge if such a change is warranted. The summary of service clearly documents that homosexuality was the reason the Applicant was discharged. There is no evidence in the record, nor has the Applicant produced any evidence, to support his request for this change. Since n o other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, changing the Narrative Reason for Separation would be inappropriate. Relief on this basis is denied.

The Applicant is advised that 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 or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

The following is provided for the edification of the Applicant. The Applicant has exhausted opportunities for review at the NDRB. If further review is desired, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of service.
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. 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 125 Sodomy .

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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