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NAVY | DRB | 2007_Navy | ND0700306
Original file (ND0700306.rtf) Auto-classification: Denied
ex-HM1(FMF/SW), USN
ND07-00306
Current Discharge and Applicant’s Request
Application Received: 20070110   Characterization Received:
Narrative Reason: HOMOSEXUAL ACT Authority: MILPERSMAN 1910-148

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issue ( s ) :     1 . Discharge Inequitable- one isolated incident
                          

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall HOMOSEXUAL ACT .
Date: 20071011                                       Location: Washington D.C.       

Discussion

 Issue 1 ( ). The Applicant contends that his discharge was inequitable as since it was “based on one incident in 16 years and 9 months of service”. The NDRB advises the Applicant that despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. As noted in the Re port of Trial by Summary Courts- Martial, t he Applicant was convicted on 16 April 2003, for violation of Article 125, Sodomy. During the proceedings, the Applicant admitted to performing a homosexual act on a subordinate , in the workplace , while in uniform and allow ed the subordinate to perform a homosexual act on him . Subsequently, on 22 May 2003, the Applicant was notified of Administrative Separation Processing and e lected a board . The Board v oted unanimously to separate him for Homosexual Acts and recommended a g eneral ( u nder h onorable c onditions ). Pursuant to MILPERSMAN 1910-148 when a service member, during the current term of service, commits a homosexual act with aggravating circumstances such as acts with a subordinate that violate customary naval superior-subordinate relationship, in an area subject to N aval control, then an other than honorable is authorized . The Applicant’s performance during the current period of service, which form ed the primary basis for determining the character of his service, was marred by his conduct that involved several aggravating factors. Based on the documents presented and Applicant ’s own admission under oath , the board has determined that the basis for his separation and characterization of service as general ( under honorable conditions ) is substantiated.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evide nce, to include the Applicant’s Summary of Service, Medical and Service Record Entries , Report of Trial by Summary Courts-Martial, Discharge Process and evidence submitted by the Applicant, the Board found that


Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19861105 - 19870106              Active:          19870107 - 19920824
                           19920825 - 20000823                                 20000824 - 20020814
Period of Service Under Review:
 Date of Enlistment: 20020815               Years Contracted : ; Extension:                   Date of Discharge: 20030926
Length of Service : 01 Yrs 01 Mths 12 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 31/64       Highest Rank /Rate : HM1
Evaluation marks (# of occasions):       Performance: 3.0 ( 1 )       Behavior: 4.0 ( 1 )          OTA: 3.29
Awards and Decorations ( per DD 214): FOURTH GOOD CONDUCT AWARD FOR PERIOD ENDING 01JAN05, NATIONAL DEFENSE SERVICE MEDAL (2 ND ), NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2 ND ), SOUTHWEST ASIA MEDAL (KUWAITI LIBERATION MEDAL, NAVY AND MARINE CORPS SEA SERVICE DEPLOYMENT RIBBON (2 ND ), COMBAT ACTION RIBBON, FMF RIBBON

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20030416 :        SCM -- Viol UCMJ Art. 125 - Sodomy .
         Awarded - FOP ( $1775.00 ) for ( 1 month); Restr for (20 day s) . CA action: 20030429 approved and ordered executed .

Discharge Process

 Date Notified:                                       20030522
Reason for Discharge:    
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20030603
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ( NOT FOUND IN RECORD )
          Administrative Board                       
         GCMCA review                               

Administrative Board Date :       20030722
Findings, by preponderance of the evidence:     BY - .
          BY SEPARATION WARRANTED.
 Recommendation on Separation:   BY
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 20030827 )
Separation Authority (date):     COMNAVPERSCOM ( 20030911 )
 Reason for discharge directed: 
Characterization directed:     
Date Applicant Discharged:       20030926


Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until
25 January 2004, Article 1910-148, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: 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.
Employment/Educational Opportunities : 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 of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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