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NAVY | DRB | 2011_Navy | ND1100879
Original file (ND1100879.rtf) Auto-classification: Denied

ex-DC3, USN
Current Discharge and Applicant’s Request
Application Received: 20110217
Characterization of Service Received:
Narrative Reason for Discharge: HOMOSEXUAL ACT
Authority for Discharge: MILPERSMAN

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19980130 - 19980726     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980727     Age at Enlistment:
Period of E nlistment : Years 36 MONTHS Extension
Date of Discharge: 20011214      Highest Rank/Rate: DC2
Length of Service : Y ear ( s ) M onth ( s ) 18 D a y ( s )
Education Level:        AFQT: 37
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.72

Awards and Decorations ( per DD 214):      Pistol CGMUC (2) Lo C

Periods of UA /C ONF :

NJP :

- 199 9 0803 :      Article (Fail ure to stand a proper watch ), 199 9 0731
         Awarded: (E-4) Suspended: (suspend 6 months)

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:

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ COAST GUARD MERITORIOUS UNIT COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON (2), ARMED FORCES EXPEDITIONARY MEDAL, LETTER OF COMMENDATION, LETTER OF APPRECIATION (2), PISTOL SHARPSHOOTER RIBBON ”
        
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 30, effective 24 August 2000 until
14 May 2002, 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 a discharge upgrade to reenlist in the U.S. Armed Forces.
2.       Applicant contends command impropriety led to a violation of his rights and his separation from the Navy.

Decision

Date: 20 1 1 09 26             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 complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention warnings, but did include one for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, failed to properly stand watch o/o 31 Jul 2001 ) . The records also revealed the Applicant’s command initiated an investigation on or about 23 Oct 2001 after an E-3 claimed he had been sexually harassed by the Applicant. The E-3 signed a statement in which he related that while drinking at a bar on 21 Oct 2001, the Applicant (then an E-5) rubbed the E-3’s leg in a sexual manner. The E-3 told the Applicant to stop , which he did for about five minutes. Shortly thereafter, the E-3 stated the Applicant started to rub the E-3’s inner thigh at which point he grabbed the Applicant’s hand and stated , “I said stop . ” The E-3 then got up and proceeded to leave the establishment when the Applicant slapped the E-3’s buttocks. In a signed statement , the Applicant stated that on 21 Oct 2001, he had been drinking at the establishment mentioned previously by the E-3. He stated “I started groping (the E-3) and he said , ‘ S top , man ’ and I didn’t because he led me to believe he liked me in that way because he would come up to me and say , ‘ H ey man , can I smoke your pole . ’ I would tell him to go away , because we were in public. Getting back to the bar , an E-4 told me he was gay and I had told him I was bi. I kissed him on the cheek and smacked his (buttocks). We proceeded to drink and have fun. Then on 22 Oct, I was drinking at the same bar around 2000 and the E-4 showed up and we started drinking. I had plenty to drink so I slept at the E-4’s place at 2330. There we proceeded to have sex and playing with each other after that we went to sleep. I had anal sex with him, but he didn’t with me . ” Based on the witness statement and the Applicant’s statement that he had engaged in, had attempted to engage in, and had the propensity to engage in homosexual conduct, his command administratively processed him for separation , which wa s mandatory per the Naval Military Personnel Manual (MILPERSMAN). When notified of administrative separation processing using the procedure on 26 Oct 2001 , the Applicant waived 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. The Applicant’s Commanding Officer submitted a request for administrative separation of the Applicant to the Commander, Navy Personnel Command (PERSCOM ) with a recommendation for an Honorable discharge. On 13 Nov 2001, PERSCOM directed that the Applicant be separated from the Navy with a General (Under Honorable Conditions) discharge due to Homosexual Act. The discharge was effected on 14 Dec 2001.

: (Nondecisional) The Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.


: (Decisional) ( ) . The Applicant contends command impropriety led to a violation of his rights and his separation from the Navy. The NDRB is not an investigative body and allegations of legal impropriety should be made to the Naval Inspector General ’ s Office. Allegations notwithstanding, t he 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 sworn statements made by the Applicant and one other Sailor (obtained during the command’s investigation of sexual harassment by the Applicant) that clearly revealed the Applicant had engaged in, had attempted to engage in, and had a propensity to engage in , homosexual conduct. Per the MILPERSMAN in effect at the time , w he n 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 prior to processing for administrative separation . The service member is considered c redible 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). Accordingly, the Applicant ’s Commanding Officer processed him for administrative separation per the MILPERSMAN in effect at that time. When notified of pending administrative separation for homosexual conduct, the Applicant waived his rights (in writing) 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 .

With a misconduct-free service record, and adherence to the minimum acceptable levels of performance and conduct, a homosexual conduct separation would normally rate an Honorable character of service upon discharge . However, since the Applicant’s service record contained an NJP for violation of UCMJ Article 92, which is considered a serious offense, the Commander, Navy Personnel Command directed the Applicant be assigned a General (Under Honorable Conditions) discharge . After careful examination and deliberation, the Board could find no evidence to support the Applicant’s contention of command impropriety (wrongful accusation, denied access to counsel, coercion in obtaining statement, rights violated). Therefore, the Board found this issue to be without merit and 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 the discharge was proper and equitable at the time of discharge. However, pursuant to Public Law 111-321 and in accordance with 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 , but 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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