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NAVY | DRB | 2009_Navy | ND0901060
Original file (ND0901060.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20090319
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19961210 - 19961226     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19961227     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19991119      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 49
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 2.87

Awards and Decorations ( per DD 214):      BER

Periods of UA : 19970510-19970511 (1 DAY); 0700-0800, 19970912 (1 Hour); 19971002-19971003 (1 DAY);
         0700-0730, 19971006 (30 Minutes); 0645-0845, 19971010 (2 Hours); 19980329-19980330 (1 DAY); 19 990510-1999060 8 (29 DAYS)

NJP :
- 19990617 :       Art icle 86 (U nauthorized absence for 29 days )
         Article 87 (Missing ship’s movement through design)
                   Awarded : Susp ended :

S CM : SPCM: C C :

Retention Warning Counseling :

- 19990617 :       For you r appearance before the Commanding Officer on 19990617 for unauthorized absence and missing ship’s movement.


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 /To Representat ion :            From /To Congress m ember :         
Oth er Documentation :   


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

Applicant’s Issues

 1. Wants to use GI Bill money to attend/finish college.
2. Applicant claims he had to admit against his will to homosexual conduct.

Decision

Date: 20 0 9 0917    Location: Washington D.C .     R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
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 discharg e if such change is warranted. 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 NAV PERS 1070/613 (Page 13) warning and non - judicial punishment (NJP) for o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 (Unauthorized absence for 29 days) and Article 87 (Missing movement through design). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a court martial but opted instead for an administrative discharge. Ad dition ally , the command did conduct an investigation into the Applicant’s reported homosexual activities and questioned him after he was informed o f the Department of Defense (DOD) policy on homos exual conduct. T he Applicant was notified by the commanding officer that he was to be administratively separated by two reason s of homosexuality and one reason of commission of a serious offense. Ultimately , the Applicant was separated for commission of a serious offense with a narrative reason for separation being “ misconduct ” based on his missing movement through design in combination with a 29 -day unauthorized absence —not homosexuality. When processed for a dministrative s eparation, the Applicant waived right s to consult with qualified counsel, submit a written statement for consideration by the separating authority and request an a dministrative b oard .

: (Nondecisional) The Applicant wants to use his GI Bill money to attend/finish college . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2: (Decisional) ( ) . The Applicant contends that he had to admit to homosexual conduct because he was being harassed and threatened during wartime ( Kosovo ) and that it (the admission) was very stressful and against his will. The Board noted that o n 15 September 1999, the Applicant made a voluntary statement admitting to h is homosexuality and participation in homosexual acts, noting (through signature ) that , “I fully understand that I am making this statement of my own free will and that no threats or promises have been extended towards me . ” In his statement, the Applicant also noted that he was emotionally stressed and harassed by peers who suspect ed him being a homosexual and he sought separation from the Navy . Besides th is statement, the Applicant provided no other documentation to substantiate his claims. Although the Applicant may believe he was discharged due to h omos exuality, the Board noted that he was discharge due to misconduct, which was warranted due to the serious ness of his Article 86 and 87 violations . Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing until fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additi onal Reviews, Employment/Educational Opportunities , and Post-Service Conduct .

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
29 March 2000, Article 1910-142, Separation By Reason Of Misconduct - Commission of a Serious Offense .

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 87 (Missing movement).


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : 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. 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; 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 companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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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