Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1000525
Original file (ND1000525.rtf) Auto-classification: Denied

ex-TM2, USN
Current Discharge and Applicant’s Request
Application Received: 20091208
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)        20030516 - 20030625     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030626     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061130      Highest Rank/Rate: TM2
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 3.47 (4)

Awards and Decorations ( per DD 214):      Pistol (2) FLoC ESWS EAWS LoA

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 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.        Applicant seeks an upgrade to obtain GI Bill benefits.
2.       Applicant contends his discharge was too harsh , because he waived his Admin istrative Separation Board due to the Administrative Separation Notification of Honorable discharge recommendation made by the CO.

Decision

Date : 20 1 1 01 28             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The 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 discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service did not contain any negative NAVPERS 1070/613 (Page 13) retention counseling warnings, commanding officers ’ nonjudicial punishments, or trial by court s -martial. The record did reflect the Applicant was the subject of an NCIS investigation for alleged homosexual conduct related to indecent acts and sodomy with another Sailor on board the ship on which he was assigned. Based on the findings of the investigation, which considered sworn statements made by the Applicant and the other Sailor involved, the Applicant’s command administratively processed for separation , which is mandatory per the Naval Military Personnel Manual (MILPERSMAN) . When notified of administrative separation processing using the procedure on 25 Oct 2006 , the Applicant initially waived rights to consult with a qualified counsel, submit a written statement, and request an A dministrative S eparation B oard . Even though he waived his right to consult with a qualified counsel, he did later consult with counsel, who after reviewing the Applicant’s exemplary service record and the command officer’s administrative separation recommendation for an Honorable discharge (dated 25 Oct 2006) , advised the Applicant that waiving his right to an Admin Board would be prudent.

: (Nondecisional) Applicant seeks an upgrade to obtain GI Bill benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge . As such, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities and therefore, this issue does not serve to provide a foundation upon which the Board can grant relief.
: (Decisional) ( ) . The Applicant contends his discharge was too harsh , because he waived his Admin Board due to the Administrative Separation Notification recommendation made by the CO. The Board thoroughly examined the Applicant’s record of service and noted his exemplary performance throughout. The Board also noted th at after initial notification of pending Ad ministrative Separation processing , in which he was notified that the least favorable characterization he could receive was Under Other Than Honorable Conditions , th e Applicant did waive his right to an Administrative Separation Board , likely based on a reasonable belief that he would be separated with an Honorable discharge as recommended by his Commanding Officer . After the Commander, Navy Personnel Command message was released directing the Applicant’s discharge , h is military counsel and Commanding Officer unsuccessfully attempted to have the Applicant’s waiver of the Admin Board retracted to afford him the op portunity to present his case.

The NDRB closely examined the facts and circumstances surrounding this case to determine whether impropriety existed during the administrative separation processing of the Applicant . In its examination, the Board found that the Applicant had been properly notified via the Administrative Board Procedure as prescribed in section 1910 of the MILPERSMAN. The Applicant, after consulting with military counsel , chose to waive his right to an Administrative Separation Board, a decision the NDRB felt most personnel would make if placed in the same circumstances. As the Separation Authority, Navy Personne l Command , in processing the request for administrative discharge of the Applicant, consulted the MILPERSMAN (section 1910-148) and determined that the Applicant ’s discharge would be Under Other Than Honorable Conditions based on two aggravating conditions related to the Applicant’s misconduct. The two aggravating conditions were “ homosexual acts aboard a naval vessel ” and “ homosexual acts with compensation , ” which warranted an Under Other Than Honorable Conditions discharge per the instructions provided in the MILPERSMAN. Therefore, after careful consideration, the Board determined that the discharge was proper and equitable , and this issue did not provide a basis for which relief could be granted.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries , and administrative separation p rocess, the Board found the discharge was proper and equitable . Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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

Similar Decisions

  • 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 | 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 | 2010_Navy | ND1000380

    Original file (ND1000380.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 | 2009_Navy | ND0902638

    Original file (ND0902638.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 | 2010_Navy | ND1002286

    Original file (ND1002286.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks RE code and discharge upgrade to reenlist in the U.S. Armed Forces.2. On 15 Dec 1998, the Applicant’s commanding officer submitted a request to Commander, Navy Personnel Command (PERSCOM) for administrative separation of the Applicant with a recommendation for an Under Other Than Honorable Conditions discharge due to the aggravated circumstance (sex aboard ship)...

  • NAVY | DRB | 2014_Navy | ND1401225

    Original file (ND1401225.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends she was never offered or allowed to seek counsel.2. ” 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. There is no requirement or law that grants recharacterization solely on...

  • NAVY | DRB | 2010_Navy | ND1001278

    Original file (ND1001278.rtf) Auto-classification: Denied

    The Applicant’s service record documents a prior period of active duty enlistment in which the Applicant received an Honorable Discharge certificate and was transferred to the U.S. Navy Reserve. Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall , but the narrative reason for separation shall remainHOMOSEXUAL...

  • NAVY | DRB | 2013_Navy | ND1300561

    Original file (ND1300561.rtf) Auto-classification: Denied

    Given the detailed documents of record, including the commanding officer’s inquiry and his statement in the administrative separation endorsement, the NDRB determined the Applicant’s separation for Homosexual Admission was proper and equitable at the time it was issued.Narrative Reason for Separation: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel & Readiness) memorandum regarding the repeal of “Don’t Ask, Don’t Tell,” service discharge review boards should...

  • NAVY | DRB | 2014_Navy | ND1400394

    Original file (ND1400394.rtf) Auto-classification: Denied

    Representation: 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...

  • NAVY | DRB | 2011_Navy | ND1101182

    Original file (ND1101182.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...