Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101229

Original file (ND1101229.rtf) Auto-classification: Denied

ex-MM3, USN

Current Discharge and Applicant’s Request

Application Received: 20110413

Characterization of Service Received:

Narrative Reason for Discharge: HOMOSEXUAL ADMISSION
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20020716 - 20030317     Active:          20030318 - 20050317

Period of Service Under Review:
Date of Current Enlistment: 20050318     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070705      Highest Rank/Rate: MM2
Length of Service : Y ear ( s ) M onth ( s ) 18 D a y ( s )
Education Level:        AFQT: 67
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 3.06

Awards and Decorations ( per DD 214):      (2)

Periods of C ONF :

NJP :

- 200 6 0606 :      Article (Absence without leave , 21 days ) , 20060306 - 20060328
         Article (Missing movement) , 20060307, 20060313, 20060319
         Awarded: (to E-4) Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20060607 :       For CO’s NJP of 20060607 for violation of the UCMJ A rticle 86, A bsence without leave , and A rticle 87 , M issing movement

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 030318 UNTIL 050317 ”

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 11, effective 29 April 2005 until 15 June 2008, 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 & R eadiness ) 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 contends the denial of VA benefits is discriminatory based on his sexual orientation.
2.       Applicant contends his discharge was improper/inequitable due to no actions o f his own as he kept his lifestyle to himself.

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 ADMISSION .

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 d ecisional 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 included one NAVPERS 1070/613 (Page 13) retention warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 21 days: 0100, 6 Mar 2006 - 0700, 28 Mar 2006 ) and Article 87 ( Missing Movement, 7 Mar, 13 Mar, and 19 Mar 2006). The records also revealed the Applicant submitted a written statement to the command’s legal department (dated 6 May 2007) that stated he was a homosexual male, aged 23, in the Navy and had been homosexual for approximately 13 years. He continued by stating he had not committed homosexual acts while on military establishments and that he could not conform to N avy rules (homosexual policy). Based on the written statement made by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure on 6 May 2007 , the Applicant exercised his right to submit a written statement (6 May 2007 statement submitted to the command ’s legal department), but waived rights to consult with a qualified counsel, 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 11 May 2007 , the Applicant’s Commanding Officer submitted a request for administrative separation of the Applicant from the Navy with the recommendation for an Honorable discharge. On 6 Jun 200 7 , the Commander, Navy Personnel Command d irected that the Applicant be separated from the Navy with a General (Under Honorable Conditions) discharge due to Homosexual Admission. The discharge was effected on 5 Jul 200 7 .

: (Nondecisional) The Applicant contends the denial of VA benefits is discriminatory based on his sexual orientation. T he U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The 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/inequitable due to no actions of his own as he kept his lifestyle to himself. The NDRB 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 a s igned statement made by the Applicant (dated 6 May 2007) that clearly revealed the Applicant was homosexual (a violation of the “Don’t Ask Don’t Tell” policy in effect at the time) and that he had a propensity to engage in homosexual conduct. Per the Naval Military Personnel Manual (MILPERSMAN) in effect at the time , w hen a service member has state d 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) . Based on the Applicant’s statement, his Commanding Officer determined he was credible and processed him for administrative separation that was mandatory per the MILPERSMAN in effect at the time.

With a clean service record and adherence to the minimum acceptable levels of performance and conduct, a homosexual admission would normally rate an Honorable character of service upon discharge. However , based on the Applicant’s service records , which included an NJP for violation of UCMJ Articles 86 (21 days of unauthorized absence) and Article 87 (Missing ship’s movement on 3 occasions), and a Page 13 Retention Warning for violation of UCMJ Articles 86 and 87, the Board determined that the General (Under Honorable Conditions) discharge awarded the Applicant upon separation was equitable. In fact, servicemembers with this level of misconduct typically receive an Under Other Than Honorable Conditions characterization of service. Therefore, the Applicant’s issue was determined 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. Therefore , the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain HOMOSEXUAL ADMISSION . 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 | ND1101229

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