Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801927

Original file (ND0801927.rtf) Auto-classification: Denied

ex-YNSN, USN

Current Discharge and Applicant’s Request

Application Received: 20080918

Characterization of Service Received: UNDER OTHER THAN HONORABLE CONDITIONS

Narrative Reason for Discharge:

Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19930930 - 19940710     Active:

Period of Service Under Review:
Date of Enlistment: 19940711     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980915      Highest Rank/Rate: YN3
Length of Service : Y ear s M onth s 05 D a ys
Education Level:        AFQT: 88
Evaluation M arks: Performance: 2.8 (9) Behavior: 3.0 (9) OTA: 3.04

Awards and Decorations ( per DD 214):      NMCOSR

Periods of UA /C ONF :

NJP :
- 19970626 :       Article 92 (Failure to obey a lawful order)
         Awarded : Susp ended:

- 19980721 :       Art icle 92 ( Failed to obey a lawful order )
         Article 125 (Sodomy)
         Awarded : Susp ended :

S CM : SPCM: C C :

Retention Warning Counseling : 1

- 19970701 :       For violation of the UCMJ, Article 92: Failure to obey a lawful order

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 98 AUG 31 ”
         “ 04 01 21 ”
         “ 1910-140"
         Block 26, Separation Code, should read: "HKA"
         Block 28, Narrative Reason for Separation, should read "Pattern of Misconduct"

The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related 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 Representat ion :    From Congress m ember :
Oth er Documentation :

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
21 August 2002, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT .

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 92 ( Failure to obey a lawful order or regulation ) and Article 125 ( Sodomy ) .

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

Applicant’s Issues

1. The charge of Article 125 , (Sodomy) relat ing to consensual activity was reversed and remanded
2 . Inexperience and gross immaturity caused him to participate in “group activities”.

Decision

Date: 20 0 9 0129 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .

Discussion

: ( ) . The Applicant contends his discharge should be upgraded since the charge of a violation of the Uniform Code of Military Justice, Article 125 (Sodomy), relating to consensual activity was reversed and remanded by the U. S. Supreme Court in Lawrence v. Texas (2003) . 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 record of service reflects he was awarded NJP twice duri n g his enlistment for violations of the U niform C ode of M ilitary J ustice (UCMJ): Article 92 (2 specifications) , for failure to obey order by hav ing female guest in the bachelor enlisted quarters (BEQ) after hours and fraternizing with members of different ranks and grades , and Article 125 ( Committing s odomy with female service members while attached to or embarked on a Navy vessel ) .

The decision in Lawrence v. Texas pertained to consensual sexual activity between two males in the privacy of their home , u nlike the Applicant w h o was discharged from military service after committing sodomy with females on board a Navy vessel , fraternizing with various members at or near a hotel in Kowloon Peninsula, China and violating Navy regulations by having females in his BEQ after hours . The Applicant ’s statement the U . S. Court of Appeals for the Armed Forces ruling Lawrence v. Texas applies to Article 125, thus banning sodomy, is not accurate . Th e ruling applies only to conduct involving sexual activity between consenting adults. Furthermore, there is no evidence in the record or provided by the Applicant to prove the sodomy committed by him with the fe males was consensual, between couples or private in nature. Additionally, t he Applicant ’s statement in his DD Form 293, section 15 , Remarks, contained the following admi ssion: “I participated with a group in activities from which a complaint was made against a specific individual … led to the disclosure that a number of had been engaged in unnatural carnal copulation with certain other person(s) such that, in my case …”

T he comments on the Applicant’s discharge performance evaluation of 31 July 1997 indicate d the Applic ant had no interest in adapting to military standards, lacked self control, displayed no commitment to professional development and was a discredit to good order and discipline. The NDRB concur red with the commanding office r ’s statement; such conduct is detrimental to good order and discipline , consensual or not . Based on the foregoing evidence and lack of mitigating circumstances, the Board determined the awarded discharg e characterization of service was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends he was inexperienced and immature at the time and wiped out 4 years of exemplary service “marred by one incident in 1997 and permanently severed my proud relationship with the US Navy. ” As noted above, the record reflects two NJP’s during this enlistment : One o n 26 June 1997 and the second on 21 July 1998 . Therefore, his statement regarding an isolated incident is without merit . T he allegation of being inexperience d is also without merit since the Applicant had 4 years of Naval experience at the time of the second offense and should have known such conduct was in violation of Navy policy. The service record reflect s the Applicant signed a letter on 17 June 1997 acknowledging he received training on Inte gration of Women, sexual harassment , fraternization, etc . He attended this training a year prior to committ ing the last offenses , which contained the charge of Sodomy . T he Board determined the awarded discharge characterization was appropriate and an upgrade 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 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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

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NAVY | DRB | 2008_Navy | ND0801927

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