Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700540

Original file (ND0700540.rtf) Auto-classification: Denied

ex-AA, USN
ND07-00540

Current Discharge and Applicant’s Request

Application Received: 20070315 Characterization Received:
Narrative Reason: HOMOSEXUAL ADMISSION Authority: MILPERSMAN 1910-148

Applicant’s Request:      Characterization change to:
                           Narrative Reason change: NONE REQUESTED

Applicant’s Issues:       1. RE Code and characterization are preventing a security clearance needed for desired occupation.
                           2. Not homosexual, lied due to family and financial hardship.
                           3. Post Service – Member of Arizona Army National Guard.

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall HOMOSEXUAL ADMISSION .

Date: 20 071115            Location: Washington D.C          R epresentation :

Discussion

Issue 1 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ): The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character ization of service and/or the reason for discharge if such change is warranted. The Applicant freely admitted to being homosexual and was subsequently properly discharged in accordance with the Naval Military P ersonnel Manual Article 1910-148 . The statement provided by the Applicant now in an effort to have her discharge changed does not invalidate the homosexual admission received while on active duty.

For the information of the Applicant, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an “ uncharacterized ” or “ entry-level sep a ra tion ” characterization of service. Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances during h er less than f our months in the U. S. Navy to warrant a change of discharge to honorable.

The Applicant should also be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

Issue 3 ( ): The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided proof of her enlistment in the Arizona Army National Guard and her discharged bankruptcy as documentation of her post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant was insufficient to warrant a change in her characterization of service .

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
Inactive: US N R (DEP)               20040624 - 20040817              Active:
Period of Service Under Review:
Date of Enlistment: 20040818      Years Contracted : ; Extension: Date of Discharge: 20041216
Length of Service : 00 Yrs 03 Mths 29 D ys                                                       Lost Time :
Education Level:                  Age at Enlistment:                AFQT: 59                   Highest Rank /Rate : AA
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A             OTA: N/A
Awards and Decorations ( per DD 214): NDSM

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

20041119:        Applicant’s voluntary statement requesting to be separated from the naval service as a result of her homosexuality.

20041216:        Applicant advised of her restricted reenlistment classification i.e. non-eligible for reenlistment (RE-4).

Discharge Process

Date Notified:                                       20041129
Reason for Discharge:
Least Favorable Characterization:

Date Applicant Responded to Notification:                  20041129
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         GCMCA review

Commanding Officer Recommendation (date):        ( 20041202 )
Separation Authority (date):     COMNAVPERSCOM ( 20041209 )
Reason for discharge directed:
Characterization directed:
Date Applicant Discharged:       20041216

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) Bankruptcy Discharge

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until
28 April 2005, 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, provi ded 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 grante d 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.

Employmen t / 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

Similar Decisions

NAVY | DRB | 2010_Navy | ND1000406

Original file (ND1000406.rtf) Auto-classification: Denied

The NDRB is limited to conducting reviews to examine the propriety and the equity of an Applicant’s discharge and is authorized to change the character of service or the reason for discharge, based on those factors, if such change is warranted. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. A request for a...
NAVY | DRB | 2014_Navy | ND1401225

Original file (ND1401225.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends she was never offered or allowed to seek counsel.2. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. There is no requirement or law that grants recharacterization solely on...
NAVY | DRB | 2012_Navy | ND1201222

Original file (ND1201222.rtf) Auto-classification: Denied

Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .By a vote of the Reenlistment Code shall .Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence...
NAVY | DRB | 2012_Navy | ND1200461

Original file (ND1200461.rtf) Auto-classification: Denied

Given the documents of record, the Applicant’s personal statement, and the commanding officer’s statement in the administrative separation endorsement, the NDRB determined that the Applicant’s separation by reason of Homosexual Conduct (Acts), in accordance with Article 1910-148 of the MILPERSMAN, was proper at the time it was issued.Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily...
NAVY | DRB | 2009_Navy | ND0902262

Original file (ND0902262.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From/To Representation:From/ToCongress member:Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...
NAVY | DRB | 2013_Navy | ND1300113

Original file (ND1300113.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. DEPARTMENT OF THE NAVYNAVAL...
NAVY | DRB | 2013_Navy | ND1300376

Original file (ND1300376.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to:Narrative Reason change to: Reentry Code change to: RE-1 Separation Code change to: JFF Summary of Service Prior Service: Inactive:USNR (DEP)20040720 - 20040810Active: Period of Service Under Review: Date of Current Enlistment: 20040811Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20061218Highest Rank/Rate:E3/GSFNLength of Service:Years Months08 DaysEducation Level:AFQT:...
NAVY | DRB | 2009_Navy | ND0900300

Original file (ND0900300.rtf) Auto-classification: Denied

” 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. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.Only the Board for Correction of Naval Records can grant this type of narrative reason change. With respect to a...
NAVY | DRB | 2013_Navy | ND1300701

Original file (ND1300701.rtf) Auto-classification: Denied

Given the detailed documents of record, the Applicant’s personal statement, and the commanding officer’s statement in the administrative separation endorsement, the NDRB determined the Applicant’s separation by reason of Homosexual Conduct, in accordance with Article 1910-148 of the MILPERSMAN, coupled with the misconduct of record, was proper and equitable at the time it was issued. Accordingly, the NDRB determined that the narrative reason for separation will change to Secretarial...
NAVY | DRB | 2013_Navy | ND1300269

Original file (ND1300269.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700540

Similar Decisions