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NAVY | DRB | 2012_Navy | ND1200295
Original file (ND1200295.rtf) Auto-classification: Denied
ex-FR, USN
Current Discharge and Applicant’s Request
Application Received: 20111116
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)        19991022 - 19991031     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19991101     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000427      Highest Rank/Rate: FR
Length of Service: Y ear( s ) M onth( s ) 27 D a y ( s )
 Education Level:        AFQT: 69
Evaluation M arks:         Performance: 2.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 2.40

Awards and Decorations ( per DD 214):      N ONE

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), Change 24, effective 20 May 1999 until
23 August 2000, 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 .

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

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

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

Applicant’s Issues

 1. The Applicant seeks a change in the characterization of service at discharge in accordance with the repeal of the “Don’t Ask, Don’t Tell” law , contending that it was inequitable due to being physically threatened by other S ailors into admitting his sexual orientation.

Decision

Date: 20 1 2 0523            Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
By a vote of the Reentry Code shall RE-4 .
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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the discharge action met the pertinent standards of equity and propriety. The
Applicant’s record of service documents no retention counseling warnings (NAVPERS 1070/613) , nonjudicial punishments, or punitive courts-martial for any violations of the Uniform Code of Military Justice while in service.

In accordance with the Naval Military Personnel Manual (MILPERSMAN) (NAVPERS 15560C), Change 24, effective 20 May 1999 until 23 August 2000, Article 1910-148, Separation by Reason of Homosexual Conduct , which was in effect at the time of the Applicant’s discharge , the Applicant’s in-service statement and corresponding official statement to the chain-of-command regarding a homosexual lifestyle and an intent to engage in homosexual relationships created a rebuttable presumption that t he Applicant had engaged in, or had the propensity to engage in, homosexual acts. The Applicant consulted with a legal defense counsel and chose not to challenge or to rebut this presumption. Based on the statement made by the Applicant, the decision not to rebut any presumptions thereafter, and the c ommanding o fficer’s belief that the Applicant’s statements were credible, the Applicant was processed administratively for involuntary separation and was assigned a corresponding reentry code of RE-4. When notified of administrative separation processing using the board procedure, the Applicant acknowledged that the least favorable characterization of service warranted at discharge was Under Other Than Honorable Conditions but that the command was recommend ing separation with a General (Under Honorable Conditions) characterization. The Applicant acknowledged understanding of the notification of separation proceedings and rights therein; with advice of counsel, the Applicant elected to waive the right to consult with a qualified legal defense counsel regarding separation , waived t h e right to request that an administrative board hearing be convened, and waived the right to submit a ny other statements t o the S eparation A uthority. At the time of discharge, processing for separation was mandatory in accordance with the MILPERSMAN and Department of Defense Policy under the “Don’t Ask, Don’t Tell” law. Given the documents of record, the Applicant’s personal statement, and the c ommanding o fficer’s statement in the administrative separation endorsement, the NDRB determined that the Applicant’s separation by reason of Homosexual Admission, in accordance with Article 1910-148 of the MILPERSMAN, was a proper reflection of the reason for discharge and was proper and equitable at the time it was issued.

: (Decisional Issue) ( ) . The Applicant seeks a change in the characterization of service at discharge in accordance with the repeal of the “Don’t Ask, Don’t Tell” law , contending that it was inequitable due to being physically threatened by other S ailors into admitting his homose xual orientation. The Applicant contends that physical threats of violence led to a violation of rights and forced the separation action 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. However, the evidence of record documents that the Applicant’s allegations of sexual harassment and hazing were reported up through the chain of command and were investigated but that no validation of the allegations was discovered. The Applicant received a characterization of service at discharge of Uncharacterized . An Uncharacterized discharge is warranted when separation is initiated while a member is within the first 180 days of continuous active duty , except when the characterization of service as Under Other Than Honorable Conditions (UOTHC) is authorized or Honorable is clearly warranted. The Applicant had no misconduct of record that would rate an UOTHC discharge , and there was no evidence of unusual circumstances involving personal conduct or performance that would merit an Honorable characterization. Since the Applicant had served only 15 9 days when notified of discharge proceedings (01 Nov 1999 - 07 April 2000) , an Uncharacterized discharge was proper and is the most appropriate characterization of service at discharge . Accordingly, by a vote of 5-0, the NDRB determined that the characterization of service received at discharge - Uncharacterized - was proper and equitable at the time it was issued and does remain proper and valid. As such, no change is warranted. Relief denied.

Narrative Reason for Discharge : In accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum regarding the repe a l of the “Don’t Ask, Don’t Tell” law, service discharge review boards should normally grant requests to change the narrative reason for discharge wherein Homosexual Admission w as the only basis for discharge. This memorandum further directs that the narrative reason for separation should normally change to Secretarial Authority with a corresponding Separation Code designator (SPD code). The record of service reflects that, at the time of discharge, there was no other reason for discharge other than the homosexual admission and that no aggravating factors were involved. Accordingly, the NDRB determined that relief in the form of a change to the narrative reason for discharge, as requested, shall be granted; additionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MILPERSMAN 1910-164) with a corresponding Separatio n Code designator of JFF.

Reentry Code : In accordance with the Under Secretary of Defense (P & R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 September 2011, s ervice r eview b oards should normally grant requests to change the reentry code to an immediately-eligible-to-reenter category if the discharge and corresponding reentry code was: (1) based solely on DADT or a similar policy in place prior to enactment of DADT; and (2), there were no aggravating factors in the record, such as misconduct. As authorized by the Assistant Secretary of the Navy (Manpower & Reserve Affairs), the NDRB may change reentry codes as set forth in the USD (P&R) memorandum dated 20 September 2011. The USD (P&R) policy memorandum stated that, if applicable, the new RE code should be RE- 1J , however, this is an Air Force specific re-entry code. In accordance with the guidance and intent of the policy memorandum, the applicable U.S. Navy reentry code would be RE-1 ( eligible for reenlistment ). The Applicant received an RE-4 reentry code . The Applicant’s service record documents marginal service as evidenced by an overall performance and behavior trait average of 2.0 and an overall trait average of 2.4 recorded on the Evaluation Report and Counseling Record . The NDRB determined that the record of service would not warrant a recommendation for retention had the Applicant not been involuntarily separated for his Homosexual Admission. As such, in accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum, the NDRB determined that the reentry code will remain as RE-4.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the administrative separation process, the NDRB 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 & R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 Sep 2011, the awarded characterization of service shall remain UNCHARACTERIZED , but the narrative reason for separation shall change to SECRETARIAL AUTHORITY with a corresponding SPD code of JFF and the authority for discharge shall change to MILPERSMAN 1910-164. The reentry code shall remain RE-4. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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