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NAVY | DRB | 2011_Navy | ND1100701
Original file (ND1100701.rtf) Auto-classification: Denied

ex-STS3, USN
Current Discharge and Applicant’s Request
Application Received: 20110120
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US A R (DEP)        NFIR    Active:  
         USNR (DEP)       20041022 - 20050509 COG
Period of Service Under Review:
Date of Current Enlistment: 20050510     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061211      Highest Rank/Rate: STS3
Length of Service: Y ear M onth s 02 D a ys
Education Level: (alternative education, H.S. complete)         AFQT: 86
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 4.0 ( 1 )        OTA: 3.57

Awards and Decorations ( per DD 214):      Rifle MM Pistol SS NDSM GWOTSM

Periods of UA /C ONF :

NJP : NONE        S CM : NONE       SPCM: NONE       C C : NONE         Retention Warning Counseling : NONE
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 3 May 2005 until 16 May 2008, Article 1910-134, Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service.
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 contends his narrative reason for separation is improper/ inequitable due to deficient evidence.
2.       Applicant seeks a change in his narrative reason for separation from Fraudulent Entry to Homosexual Admission.
 3.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.
Decision

Date: 20 1 2 04 05             Location: Washington D.C .        R epresentation : NONE

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 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 identified three decisional issues for the B oard’s consideration. The Applicant was previously released from the U. S. Army D elayed E ntry P rogram (DEP) after admitting he was bi-sexual . He subsequently applied for and was granted a waiver to en list in the U. S. Navy after writing a statement affirming that he was not bi-sexual /homosexual . The record contained a 22 Oct 2004 Enlistment Waiver Briefing Sheet with the following remarks : “ DEP discharge from Army 2 yrs ago at age 18. Stated he was gay to get out of contract (advice from friend). Has done written statement not gay never has been gay.” The record also contained a 22 Oct 2004 D EP er’s Moment of Truth memorandum that stated , “I understand that after my enlistment, if any additional information that is not lis t ed in my military record is found, I could be subject to a $10,000 fine and involuntary discharge from the U.S. Navy. I have been advised to list all civil involvement (juvenile or adult) , drug usage, prior service information, dependent information and medical status information, etc … . ” The Applicant re - signed his affirmation to the Moment of Truth memorandum on 16 May 2005.
After completion of recruit training (May-Jul 2005), the Applicant attended submarine school (Aug 2005-Jun 2006) during which time he was married (16 Dec 2005). After completion of training, he checked aboard the USS Pittsburgh (SSN 720) in Aug 2006. The Applicant’s medical records indicate that approximately two months after checking aboard, he made a statement to the Chief of the Boat that “he can’t do submarine life anymore . ” He further stated that he want ed to serve on a surface ship instead, or at least an assignment “where I can be openly homosexual, but in the Navy . ” The Applicant’s records also contained a written statement ( dated 12 Oct 2006) that he submitted to his chain of command confirming his understanding of the current policy on homosexual conduct in the Department of Defense (prior to the 20 Sep 2011 repeal of the Don’t Ask Don’t Tell policy , which was initially established in 1996), the mandatory requirement for administrative separation processing if homosexual conduct/admission is determined to be credible , and then affirmed that he was homosexual. His statement also included the following , “...knowing and understanding the above, I freely make the statement that I am homosexual. I voluntarily sign this statement of my own free will . ” Based on the statements made by the Applicant to his chain of command , his commanding officer’s belief that the Applicant’s statements were credible, and the fact that he submitted a statement denying that he was homosexual (the reason for discharge from the U . S. Army DEP ) in order to obtain a waiver to enlist in the Navy, the Applicant’s command administratively processed him for separation , which wa s mandatory per the Naval Military Personnel Manual (MILPERSMAN) . When notified of administrative separation processing for Defective Enlistment - Fraudulent Entry into Military Service and Homosexual Conduct using the administrative board procedure on 8 Nov 2006 , the Applicant waived his rights to consult with a qualified counsel , submit a written statement , and request an administrati ve separation board . On 16 Nov 2006, the Applicant’s c ommanding o fficer endorsed his administrative separation package stating , “This member made an admission that he is bi-sexual which creates a rebuttable presumption that he either engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. Service member was previously released from a delayed entry program with the U.S. Army after admitting to the Army that he was bi-sexual. Thereafter, the service member entered the Naval Service by writing a statement in which he claimed he was not gay. Due to his previous statements and lack of integrity, I recommend that he be discharged from the N aval S ervice with an Other Than Honorable discharge . ” On 28 Nov 2006, the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy with a General (Under Honorable Conditions) due to Fraudulent Entry.
Issues 1-2 : (Decisional) ( ) . The Applicant contends his narrative reason for separation is improper/inequitable due to deficient evidence and seeks a change from Fraudulent Entry to Homosexual Admission. The Board conducted a detailed examination of the Applicant’s record of service to determine whether his discharge met the pertinent standards of propriety and equity. The record revealed an official statement made by the A pplicant that clearly revealed he had engaged in, had attempted to engage in, and had a propensity to engage in homosexual conduct that was directly opposed to his sworn statement that rebutted his administrative separation from the U.S. Army (for being bisexual) and stated that he was not gay when entering the Navy . Per the MILPERSMAN in effect at the time of the Applicant’s discharge , w hen a service member has stated that he or she is a homosexual or bisexual and does not contest separation, little or no investigation is necessary. The service member is considered credible when: they state they are homosexual/bisexual; are married to a member of the same sex; have engaged in homosexual acts; a reliable person has observed or heard a member engaging in homosexual acts; a reliable person states they heard, observed, or discovered a member make a spoken/written statement that a reasonable person would believe was intended to convey the fact that they engage in, attempt to engage in, or have a propensity to engage in homosexual acts; or a reliable person states they have observed behavior that amounts to a non-verbal statement by a member that they are homosexual or bisexual (i.e., behavior that a reasonable person would believe was intended to convey that the member engages in, attempt to engage in or has the propensity to engage in homosexual acts) . After careful examination of the records and thorough deliberation, the Board determined that the discharge was proper due to the fraudulent circumstances under which the Applicant knowingly enlisted . Moreover, the NDRB determined that the characterization of discharge was equitable and in accordance with the applicable orders and directives in effect at the time of his separation. The Applicant was not separated for Homosexual Admission. The Applicant was separated for Fraudulent Entry. Accordingly, the Board found the Applicant’s issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation, that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided a personal statement , transcripts, associate and bachelor degree certificates, and proof of organ donor status as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, t he Board, after consideration of all the available evidence, determined that the Applicant’s post-service achievements , although commendable, were insufficient for the NDRB to determine if his misconduct was an aberration. Moreover, at the time of administrative separation processing, the Applicant was recommended for an Under Other Than Honorable Conditions discharge by his c ommanding o fficer. However, when the Commander, Navy Personnel Command directed that the Applicant be separated on the basis of Defective Enlistment - Fraudulent Entry into Military Service, he also directed that the Applicant receive a General (Under Honorable Conditions) discharge, thereby granting a less severe characterization of service. After consideration of all the facts and circumstances surrounding the Applicant’s case, the NDRB determined that his discharge was proper and equitable, and that the Applicant’s post-service issue did not provide a basis for which relief could be granted. 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 the administrative separation p rocess, the Board found Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain FRA U DULENT ENTRY INTO MILITARY SERVICE . 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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