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NAVY | DRB | 2012_Navy | ND1200557
Original file (ND1200557.rtf) Auto-classification: Denied
ex-MT1, USN
Current Discharge and Applicant’s Request
Application Received: 20120111
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19970203 - 19970513     Active:            19970514 - 20051131

Period of Service Under Review:
Date of Current Enlistment: 20051201     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100815      Highest Rank/Rate: MT1
Length of Service: Y ear( s ) M onth( s ) 14 D a y ( s )
 Education Level:        AFQT: 80
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 4.2 ( 4 )        OTA: 3.93

Awards and Decorations ( per DD 214):      Rifle Pistol (6) (4)

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 31, effective 26 April 2010 until Present, 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 to the narrative reason for separation and reentry code , contending that his Honorable characterization coupled with his 13 years of honest and faithful service warrants the change in accordance with the repeal of the “ Don’t Ask , Don’t Tell ” policy .

Decision

Date : 20 1 2 0524    Location: Washington D.C . R epresentation :

By a vote of the Characterization shall HONORABLE.
 By a vote of the Narrative Reason shall .
By a vote of the Reentry Code shall remain 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 Applicant’s discharge met the pertinent standards of equity and propriety. The Applicant’s record of service documents no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no nonjudicial or judicial punishments for any violations of the Uniform Code of Military Justice. In accordance with the Naval Military Personnel Manual (MILPERSMAN), t he Applicant was notified of the c ommand ’ s recommendation for administrative discharge based on two separate factual reasons : Misconduct (Commission of a Serious Offense - MILPERSMAN Article 1910-142) and Homosexual Conduct (Statement) - MILPERSMAN Article 1910-148. When notified of administrative separation processing using the administrative procedure, the Applicant elected to exercise his right to consult with a qualified counsel and to submit a written statement regarding his actions and the ensuing discharge proceedings to the S eparation A uthority. As the Applicant had served over six years of active duty service, he warranted the right to request an administrative board of members be convened to hear his case ; he elected to waive that right and accept the determination of the Separation Authority. The evidence of record reflects that the Applicant was suspected of violating classified information handling procedures resulting from information contained within a personal journal that was turned over to the command. The journal also documented the Applicant’s statements of homosexual conduct while in service. As such, the command conducted a detailed investigation into the allegations of misconduct and homosexual conduct. It appears from the records that the Separation Authority determined that no purposeful security violation occurred ; as such, the Applicant was separated for his homosexual conduct (statement) as the investigation determined that the Applicant demonstrated a propensity to engage in future homosexual conduct. The Applicant did not rebut the presumption that his admission inferred a propensity to engage in homosexual conduct and did not request a General Court-Martial Convening Authority review; however, the administrative separation was not completed locally and was referred to Nav y Personnel Command for final determination. The local commander recommended separation with an Honorable characterization of service . Commander , Nav y Personnel Command approved the separation action and dire cted that the Applicant receive a n Honorable characterization of his service .

: (Decisional Issue) ( ) PARTIAL . The Applicant seeks a change to the narrative reason for separation and reentry code , contending that his Honorable characterization coupled with his 13 years of honest and faithful service warrants the change in accordance with the repeal of the “ Don’t Ask , Don’t Tell ” policy . The Applicant received an Honorable characterization of his service at discharge. In accordance with MILPERSMAN (NAVPERS 15560C), Change 31, effective 26 April 2010 until Present, Article 1910-148, SEPARATION BY REASON OF H OMOSEXUAL CONDUCT , which was in effect at the time of the Applicant’s discharge, the Applicant’s in-service statement s a s documented in his personal journal of homosexual conduct created a rebuttable presumption that he engaged in, or had the propensity to engage in, homosexual acts. The Applicant chose not to challenge or to rebut this presumption and in the ensuing security violation investigation admitted to the facts as documented . The evidence of record contains a complete copy of the supporting documents in the discharge action. At the time of discharge, processing for separation was mandatory in accordance with the MILPERSMAN. Based on the statement s made by the Applicant, his 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 separation. Given the detailed documents of record, including the command investigation and NCIS criminal investigation and his statement in the administrative separation endorsement, the NDRB determined that the Applicant’s separation by reason of Homosexual Conduct ( Statement ) in accordance with Article 1910-148 of the MILPERSMAN was proper and equita ble at the time it was issued.

Narrative Reason for Separation: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel & Readiness) memorandum regarding the repel of “Don’t Ask, Don’t Tell , ” service discharge review boards should normally grant requests to change the narrative reason for discharge wherein Homosexual Conduct was 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 (SPD code) of JFF. The record of service reflects that, at the time of discharge, there was one other reason for discharge other than homosexual conduct - Misconduct (Commission of a Serious Offense) . After detailed review of the documentation of record, coupled with the Applicant’s supporting documentation to his request for discharge review, the NDRB determined that the Misconduct allegation lacked any merit and that this specific reason for discharge, though in the original notification, was not considered by the Separation Authority. Accordingly, the NDRB determined that relief in the form of a change to the narrative reason for separation shall be granted; additionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MILPERSMAN 1910-164) and correspon ding SPD code of JFF.

Reentry Code : The Applicant seeks a change to his assigned reentry code at di scharge . In accordance with the Under Secretary of Defense (PR) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 September 2011, Service Review Boards 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 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 ’s service record documents extensive credible and faithful service over a period of 13 years and two enlistments. The Applicant was recommended for commission as an officer and was vested with numerous special authorities and responsibilities . By all accounts, on the surface, the Applicant had a massed a stellar record of service and would have warranted consideration for an RE-1 reentry code . However, the Applicant’s consideration for retention is offset by the c ommand’s awareness of his suicidal ideations and gestures , h is blatant disregard for proper conduct , his participation in high - risk activities - both at home and overseas - while on official duty , and his inability to qualify for any of the special access programs required of his occupational specialty as a result of his misconduct . Accordingly, the NDRB determined that the reentry code as issued (RE-4, not recommended for reenlistment) was both proper and equitable at the time it was issued and remains so; relief , as requested , is denied. The Applicant’s reentry code shall remain RE- 4 (ineligible for reenlistment) .

 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 HONORABLE , 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 . However, t he 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 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 reentry code. Only the BCNR can make changes to reentry 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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