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NAVY | DRB | 2010_Navy | ND1000406
Original file (ND1000406.rtf) Auto-classification: Denied

ex-CSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20091117
Characterization of Service Received:
Narrative Reason for Discharge: HOMOSEXUAL ACT
Authority for Discharge: MILPERSMAN

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20040528 - 20050228 ELS          Active:  
Inactive: USNR (DEP) 20050831 - 20060116

Period of Service Under Review:
Date of Current Enlistment: 200 60117     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060929      Highest Rank/Rate: CSSN
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.33
Awards and Decorations ( per DD 214):     
Periods of UA /C ONF :

NJP :
- 20060803 :       Article (Failure to obey order) . A warded : Susp ended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
        
The NDRB will recommend to the Commander, 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:           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 11, effective 29 April 2005 until
15 June 2008, 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 issues : The Applicant contends that she warrants an automatic upgrade in her characterization of service at discharge from Under Other Than Honorable Conditions to General (Under Honorable Conditions) .

2.       Decisional issues: The Applicant did not identify any decisional issues.

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 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 NDRB 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 NDRB completed 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 reflects entry into Naval Service at age 19 with two mis conduct waivers: pre-service illegal drug use ( marijuana ) and an adjudicated serious law violation ( misdemeanor theft and possession of a weapon ) . Throughout h er enlistment, the Applicant received no NAVPERS 1070/613 (Page 13) retention-counseling warnings but had one non-judicial punishment for violation of the Uniform Code of Military Justice : Article 92 (Failure to obey a lawful order or regulation – participating in sexual acts onboard a U.S. Naval vessel at sea).

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 Naval Military Personnel Manual (MILPERSMAN). Based on homosexual conduct as evidenced by the Applicant’s engaging in, attempting to engage in, or soliciting another to engage in a homosexual act a board a Naval vessel , coupled with her official statement that she did engage in a homosexual act aboard a Naval vessel , the Applicant’s Commanding Officer believed that credible information existed to establish probable cause to warrant an investigation . Based on the results of the local command investigation and the Applicant’s statement made during her non-judicial punishment for violation of Article 92 in which she admitted to the homosexual act, the Commanding Officer recommended the Applicant be separat ed administratively pursuant to Article 1910-148 of the MILPERSMAN .
The Commanding Officer 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 Under Other Than Honorable Conditions. The Applicant waived her right to consult with qualified legal counsel , to request an administrative board hearing, and to present evidence demonstrating that s he did not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts. The Applicant did elect to submit a written statement for the Separation Authorit y’s consideration and requested copies of all documents used to support the basis for the proposed separation. On 05 Sept 2006, the Commanding Officer forwarded his recommendation for separation to the Commander, Navy Personnel Command, recommending that the Applicant be separated and that her service be characterized as General (Under Honorable Conditions).

On 15 Sept 200 6 , the Commander , Navy Personnel Command approved the proposed recommendation for separation. In accordance with the applicable instructions and directives, he directed the Applicant be discharged from the Naval Service with an Under Other Than Honorable Conditions characterization of service and that the narrative reason for separation be “Homosexual Act . ”

: (Nondecisional) The Applicant contends that after six months she warrants an automatic upgrade in her characterization of service at discharge from Under Other Than Honorable Conditions to General (Under Honorable Conditions). There is no requirement, or law, that grants re-characterization solely on the issue of the passage of time since discharge. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. 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 .

: ( Board Issue ) ( ) . 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 .
The NDRB determined that the Command’s Preliminary Inquiry, coupled with the A pplicant’s confession during her non-judicial punishment that s he had engaged in homosexual acts while aboard a naval vessel , did establish by a preponderance of the evidence that homosexual conduct had occurred and that it was not done for the purpose of avoiding further service. The Applicant was afforded at least two separate opportunities to rebut the presumption that s he had engaged in, or had the propensity to engage in , homosexual acts ; t he Applicant did not submit any evidence to rebut th e presumption. As such, the NDRB determined that t he Applicant’s narrative reason for separation, as written on h er Form DD-214, is correct and is compliant with the applicable directives and instructions in effect at the time of the applicant’s discharge. Accordingly, the NDRB determined that the Applicant’s separation - H omosexual A ct - was proper a s issued and that no change is warranted.

The c haracterization of service at discharge will be as warranted by service record (Honorable or General) , or will be entry level , in accordance with MILPERSMAN Article 1910-148. Furthermore, s eparation may not be characterized as Under Other Than Honorable conditions unless there is a finding that during the current term of service the member attempted, solicited, or committed a homosexual act under specific circumstances . In the Applicant’s case, the specific aggravating circumstances were met in that the homosexual act : (1) violate d customary naval superior-subordinate relationships ; (2) was aboard a naval vessel or aircraft ; and (3) would have an adverse impact on discipline, good order, and morale . As such, the Commander, Navy Personnel Command directed the Applicant be discharged with an Under Other Than Honorable characterization of service . Given the unique circumstances of the case and the aggravating factors, the NDRB determined that the characterization of service at discharge was both proper and equitable and was consistent with the characterization of discharge given others in similar circumstances ; as such, no change is warranted.

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 NDRB determined Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain HOMOSEXUAL ACT .

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, Automatic Upgrades, 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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