Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100609

Original file (ND1100609.rtf) Auto-classification: Denied

ex-SH3, USN

Current Discharge and Applicant’s Request

Application Received: 20110106

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)        20000425 - 20000521     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000522     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031008      Highest Rank/Rate: SH3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 56
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

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), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-148, SEPARATION BY REASON OF HOMOSEXUAL CONDUCT.

B. Public Law 111-321, signed 22 Dec 2010 (implemented 20 Sep 2011).

C . Under Secretary of Defense (P ersonnel & Readiness ) Memorandum (Repeal of Don’t Ask Don’t Tell ) , 20 Sep 2011.

D . 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 veteran education benefits.
2.       Applicant seeks an upgrade to improve employment opportunities.
3.       Applicant contends his discharge was improper based solely on hearsay with no investigation.

Decision

Date: 20 1 1 09 22             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 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 co nducted a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equ ity and propriety. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer nonjudicial punishment (NJP) , or trial by courts-martial. The record did reveal that the Applicant’s command became aware of allegations of homosexual conduct between the Applicant and another Sailor (a Petty Officer Third Class) from the command while attending a birthday party at a Sailor’s house (location undetermined from the records). The Commanding Officer (CO) conducted an inquiry into the allegations. After a review of the sworn statements from several members of the command, to include those who had attended the party, the CO determined that the Applicant had engaged in, attempted to engage in, or solicited another to engage in , a homosexual act , which required , at the time, mandatory processing for administrative discharge per the Naval Military Personnel Manual (MILPERSMAN) . When notified of administrative separation processing using the procedure on 12 Aug 2003 , the Applicant waived his rights to consult with a qualified counsel, submit a written statement, request an administrative separation board, and 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 20 Aug 2003, the Applicant’s CO submitted a request for administrative separation of the Applicant from the Navy with the recommendation for a General (Under Honorable C onditions) discharge. On 6 Oct 2003, Navy Personnel Command directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge due to Homosexual A ct . The discharge was effected on 8 Oct 2003 .

Issues 1-2 : (Nondecisional) The Applicant seeks an upgrade to obtain veteran education benefits and to improve employment opportunities. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. Additionally, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable based solely on hearsay with no investigation. Per MILPERSMAN section 1910-148, which was in effect at the time, if a CO question ed the credibility of evidence of homosexual conduct, a fact-finding investigation may have been necessary. However , an investigation wa s not mandatory and only the CO c ould authorize it. The sol e purpose of the investigation wa s to uncover further information to assist the CO in determining whether the alleged homosexual conduct actually occurred. In the Applicant’s case, the documentation within the service records (to include 16 signed statements from members within the command) indicate d that the Applicant’s CO did conduct a fact finding inquiry. Additionally, the CO , in his comments within the adminis trative separation package , stated “after reviewing the facts in this case and the testimony offered by numerous witnesses, I have no choice but to recommend that the Applicant be separated from the United States Navy by reason of MISCONDUCT-Homosexual Conduct.” After careful examination of the records and thorough deliberation, the Board determined that the discharge was proper at the time of discharge. However, based on the Applicant’s service records (no evaluation reports to indicate substandard performance or behavior and the lack of any misconduct or disciplinary action)

and due to the apparent lack of aggravating factors that would warrant an Under Other Than Honorable Conditions characterization of service as specified in Article 1910-148, the Boar d determined that the discharge awarded the Applicant upon separation was inequitable. Relief 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 the administrative separation p rocess, the Board found the discharge was proper, but not equitable at the time of discharge. Moreover, p ursuant to Public Law 111-321 and in accordance the guidance set forth in the Under Secretary of Defense (P ersonnel & Readiness ) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 Sep 2011 , the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY . 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 for additional information.

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 | 2011_Navy | ND1100609

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