Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801090
Original file (ND0801090.rtf) Auto-classification: Denied

ex-OSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080423
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN (HOMOSEXUAL ACT)

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19941021 - 19950806              Active:

Period of Service Under Review:
Date of Enlistment: 19950807      Period of E nlistment : Years Extension          Date of Discharge: 19980807
Length of Service : Yrs Mths 01 D ys      Education Level:
Age at Enlistment:       AFQT: 76          Highest Rank /Rate : OS3
Evaluation M arks:         Performance: 3.7 ( 3 )       Behavior: 4.0 ( 3 )          OTA: 3.62
Awards and Decorations ( per DD 214): NAM , , , , (2) ,

Periods of UA /C ONF :

NJPs :    
19980427 : Art icle 134 (Indecent assault).
Awarded : . Susp - .

Types of Documents Submitted/reviewed

 Related to Military Service:      DD 214:          Service and/or 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 Representat ion :              From Member of Congress:
Other Documentation (Describe) :

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 to
31 August 1998, 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 .

C. 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 134


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Reenlistment opportunity.
2. Isolated incident.
3 . Post s ervice conduct .

Decision

Date : 20 08 0904    Location: Washington D.C .       R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall HOMOSEXUAL CONDUCT ADMISSION AND ACTS .
Discussion

 : 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 , specifically the paragraph concerning s , regarding .

: ( ) . The Applicant stated his discharge was based on one isolated incident . For the edification of the Applicant, d espite a service member’s prior record of se rvice certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. Additionally, an administrative discharge is not punishment. The decision to administratively discharge a service member is made independently of and does not require adjudication at a court-martial or nonjudicial punishment. 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. The Applicant’s service was marred by his violation of the U niform C ode of M ilitary J ustice (UCMJ), Article 134 (Indecent assault), which constitutes the “commission of a serious offense”. This specific violation is punishable by a punitive discharge and up to 5 years of imprisonment if adjudicated by a special or general c ourt- m artial. The command did not pursue a punitive discharge but opted instead for an administrative separation. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the established requirements of good Naval Service conduct. “Under Other Than Honorable Conditions” d ischarge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Board determined an upgrade would be inappropriate based on the assault violation s involving homosexual conduct as an isolated incident.

Issue 3: (Equity) RELIEF NOT WARRANTED. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides 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 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. Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions; documentation of a drug free lifestyle; and character witness statements. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge.

The Applicant provided a personal statement and as evidence of post-service accomplishments. The Applicant's efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined based on the lack of documentation provided an upgrade would be inappropriate and the characterization of service


received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the nature of the UCMJ violation involving assault with homosexual conduct.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found
























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 or is referred to a court martial 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 other medical related reasons. 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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 | ND1000453

    Original file (ND1000453.rtf) Auto-classification: Denied

    Furthermore, the NDRB reviewed MILPERSMAN section 1910-148, which provides details and guidance on administrative separations for homosexual misconduct, to determine whether the characterization of service was equitable based on the aforementioned misconduct and the Applicant’s totality of service during the enlistment period in which he was discharged. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided...

  • NAVY | DRB | 2009_Navy | ND0900626

    Original file (ND0900626.rtf) Auto-classification: Denied

    The NDRB determined the awarded discharge characterization was appropriate and an upgrade founded upon the Applicant’s admission to consensual homosexual act would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case is unclear, not...

  • 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 | ND1300745

    Original file (ND1300745.rtf) Auto-classification: Denied

    The Separation Authority reviewed the board’s recommendations and ordered the Applicant to be discharged for Misconduct (Serious Offense) with a General (Under Honorable Conditions) characterization of service. ” 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. Additionally, the NDRB has no authority to upgrade...

  • NAVY | DRB | 2012_Navy | ND1200439

    Original file (ND1200439.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...

  • NAVY | DRB | 2012_Navy | ND1201684

    Original file (ND1201684.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall HOMOSEXUAL ACT.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 to rebut the presumption,...

  • NAVY | DRB | 2009_Navy | ND0900758

    Original file (ND0900758.rtf) Auto-classification: Denied

    The Applicant elected to have an Administrative Separation Board (ASB) and theASB, by a vote of 3-0, found the Applicant guilty of misconduct by reason of homosexual conduct, as evidenced by the Applicant’s statement and by the commission of a homosexual act; by a vote of 3-0, recommended separation from the U.S. ” 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...

  • NAVY | DRB | 2008_Navy | ND0801338

    Original file (ND0801338.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)19930622 - 19940613Active: Period of Service Under Review: Date of Enlistment: 19940614Period of Enlistment: YearsExtensionDate of Discharge:19960113Length of Service: YearMonths00 DaysEducation Level:Age at Enlistment:Highest Rank/Rate:FREvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAFQT: 50Awards and Decorations (per DD 214):NDSMNJP:19950713:Article79...

  • NAVY | DRB | 2008_Navy | ND0801257

    Original file (ND0801257.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 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...

  • NAVY | DRB | 2008_Navy | ND0801439

    Original file (ND0801439.rtf) Auto-classification: Denied

    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.However, in the Applicant case, the evidence reflects he committed numerous offenses during this enlistment, thus contradicting his allegation the discharge is based on one isolated incident.The Applicant's misconduct is documented in his service record, which is marred by...