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NAVY | DRB | 2011_Navy | ND1101182
Original file (ND1101182.rtf) Auto-classification: Denied

ex-HM3, USN
Current Discharge and Applicant’s Request
Application Received: 20110408
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)        19990630 - 19991011     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19991012     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20021018      Highest Rank/Rate: HM3
Length of Service : Y ear ( s ) M onth ( s ) 7 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.6 ( 5 )      Behavior: 3.3 ( 5 )        OTA: 3.33

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :     NJP :     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: “ NATIONAL DEFENSE SERVICE MEDAL, LETTER OF APPRECIATION ”
        
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 :        





DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.        Applicant seeks discharge upgrade due to repeal of the “Don’t Ask, Don’t Tell” policy .

Decision

Date: 20 1 1 10 05             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 standards of equity 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 reflect a military suspect’s acknowledgment of rights form (dated 11 Sep 2002) that revealed the Applicant was suspected of indecent assault. In response, the Applicant submitted a statement to a command investigator detailing a seri es of events that transpired the evening prior aboard the USS George Washington. T he record also contained a written statement from the Applicant to the command ’s Legal Officer (dated 13 Sep 2002) stating he understood the Navy’s homosexual conduct policy and that what he did was in violation of that policy. Based on the offense committed by the Applicant, his command initiated a command investigation into the circumstances surrounding the incident. Upon completion of the investigation and after review of the available evidence, the command administratively processed the Applicant for separation, which is mandatory per the Naval M ilitary Personnel Manual (MILPERSMAN). When notified of administrative separation processing using the procedure on 13 Sep 2002 , the Applicant elected to exercise his right to consult with a qualified counsel, but waived his rights to submit a written statement, r equest 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 15 Sep 2002, the Applicant’s Commanding Officer submitted a request for administrative separation of the Applicant from the Navy with the recommendation for an Under Other Than Honorable Conditions discharge due to the incident occurring aboard a naval vessel , which is considered an aggravating factor per the MILPERSMAN. On 30 Sep 200 2 , the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy with a n Under Other Than Honorable Conditions discharge due to Homosexual Act. The discharge was effected on 18 Oct 2002.
: (Decisional) ( ) . The Applicant seeks a discharge upgrade due to the repeal of the “Don’t Ask, Don’t Tell” policy. 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 reveal ed a sworn statement made by the Applicant ( 11 Sep 2002), along with reference to a statement made by the Seaman involved , during the conduct of a command investigation regarding the Applicant ’s improper physical touching of the Sailor and attempt to kiss the Sailor’s hand. Additionally, in his written statement to the command’s Legal Officer on 13 Sep 2002 , the Applicant admitted that his actions met the definition of homosexual conduct . Based on the Applicant’s conduct and his homosexual admission , which was determined to be credible, his command administratively processed him for separation , which was mandatory per the MILPERSMAN in effect at the time . The fact that the Applicant was homosexual and kept his sexual orientation a secret was legal and in accordance with the C ongressionally mandated law commonly known as the “Don’t Ask, Don’t Tell” policy. However, once the Applicant chose to violate UCMJ Article 92 (Failure to obey order or regulation) by soliciting and attempting to kiss another male Sailor aboard the ship, which is considered an aggravating factor per the MILPERSMAN, the command was forced to investigate and then subsequently process the Applicant for administrative separation once the UCMJ violation was confirmed. With a clean service record, and adherence to the minimum acceptable levels of performance and conduct, a homosexual ad mission would normally rate an Honorable character of service upon discharge. However, in the Applicant’s case, he willfully violated a well-known regulation prohibiting all personnel from participating in sexual relations

aboard ship. In accordance with the MILPERSMAN, this created an “aggravating ci rcumstance” that warranted an Under Other Than Honorable Conditions discharge. After careful review and deliberation, and with no evidence to question the presumption of government regularity in this case, the NDRB found that the Applicant’s 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 the discharge was proper and equitable at the time of discharge. 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 for additional information.

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 . 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 .


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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