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NAVY | DRB | 2010_Navy | ND1000401

Original file (ND1000401.rtf) Auto-classification: Denied

ex-SKSN, USN

Current Discharge and Applicant’s Request

Application Received: 20091117

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       “HOMOSEXUAL CONDUCT – ADMISSION ”

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20070505 - 20070528     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070529     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090818      Highest Rank/Rate: SKSN
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 76
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 3.33

Awards and Decorations ( per DD 214):      PISTOL MM

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling :

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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 15 May 2009 until
25 April 2010, 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 .

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

Applicant’s Issues

1.       Nondecisional issue : None

2.       Decisional issues : (Propriety) Applicant seeks change in narrative reason for separation in order to receive unemployment benefits; Form DD-214 , Block 28, “Narrative Reason for Separation” does not match the State of California Employment Development Department expectations .

Decision

Date: 20 1 1 0201    Location: Washington D.C .       R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason 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 to rebut the presumption, to include evidence submitted by the Applicant. T he Applicant identif ied one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service refle cts entry into Naval Service at age 19 with two waivers: pre-service illegal drug use waiver for marijuana and a waiver for an adjudicated serious law violation. Throughout his enlistment s , the Applicant received no NAVPERS 1070/613 (Page 13) retention- counseling warnings or non-judicial or judicial punishment s for violation s of the Uniform Code of Military Justice.

A service member’s sexual orientation is considered a personal and private matter and is not a bar to continued service unless manifested by homosexual conduct - further defined in paragraph 1.C and paragraph 12 of Article 1910-148 of the Nav al Military Personnel Manual (MILPERSMAN). Based on homosexual conduct as evidenced by the Applicant’s voluntary statement that he was a homosexual, or words to that effect, the Applicant’s C ommanding O fficer believed that credible information existed to establish probable cause to w arrant separation. The Applicant’s admission created a rebuttable presumption that he engaged in, attempted to engage in, had a propensity to engage in, or intended to engage in homosexual acts . Therefore, p ursuant to Article 1910-148 of the MILPERSMAN, the Applicant was processed for administrative separation .

T he first Flag Officer in the Applicant’s chain of command notified the Applicant of the recommendation for administrative separation using the Administrative Board notification procedure. The least favorable characterization of service upon discharge stated in the notification was General (Under Honorable Conditions) . The Applicant waived his right to consult with qualified legal counsel, to request an administrative board hearing, and to present evidence demonstrating that he did not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. On 06 Aug 2009, the Commander , Nav y P ersonnel Command approved the proposed recommendation for separation . In accordance with the applicable instructions and directives, he direct ed the Applicant be discharged from the Naval Service with an Honorable c haracterization of s ervice and that the narrative reason for separation be “H omosex ual C onduct ( S tatement). ”

: (Decisional) ( ) . The Applicant seeks a change in narrative reason for separation in order to receive unemployment benefits . The Applicant contends that the State of California Employment Development Department requires Block 28 of Form DD-214 to state “Homosexual Conduct – Admission” in order to qualify for state - provided benefits.

The Applicant’s in-service statement to his chain-of-command that he was a homosexual created a rebuttable presumption that he engaged in, or had the propensity to engage in homosexual acts. The Applicant did not submit any evidence to rebut this presumption . The inquiry that was initiated following the Applicant’s admission determined that his statement was credible and that it was not made for the purpose of avoiding further service .

Article 1910-148 of the MILPERSMAN and Bureau of Personnel Instruction ( BUPERSINST ) 1900.8C ( effective 29 Sep 08 ) direct that the separation program designator code in the Applicant’s specific case is HRB – “ involuntary discharge directed in lieu of further processing or convening of a board (board waived). ” This separation program designator code further directs that the verbatim narrative reason for separation on the Form DD-214 will be “HOMOSEXUAL CONDUCT (STATEMENT).” P rior to 15 May 2009, the narrative reason for separation under this designator code was “HOMOSEXUAL CONDUCT – ADMISSION. ” The Applicant’s narrative reason for separation, as written on his Form DD-214, is correct and is complian t with the applicable directives and instructions in effect at the time of the A pplicant’s discharge. Accordingly, the NDRB determined the Applicant’s separation by reason of homosexual con duct was proper at the time it was issued and is correctly reflected on the Applicant’s Form DD-214 . As such, no change is warranted . R elief 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 for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .

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 Disabled American 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 their 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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NAVY | DRB | 2010_Navy | ND1000401

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