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NAVY | DRB | 2012_Navy | ND1200627
Original file (ND1200627.rtf) Auto-classification: Denied
ex-EW2, USN
Current Discharge and Applicant’s Request
Application Received: 20120130
Characterization of Service Received:
Narrative Reason for Discharge: HOMOSEXUAL ACT
Authority for Discharge: MILPERSMAN 3630400 [HOMOSEXUAL CONDUCT]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19980125 - 19890222     Active:            19890223 - 19950202

Period of Service Under Review:
Date of Current Enlistment: 19950203     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970206      Highest Rank/Rate: EW2
Length of Service: Y ear( s ) M onth( s ) 04 D a y ( s )
 Education Level:        AFQT: 82
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.78

Awards and Decorations ( per DD 214):      (2) , , (w/ two bronze stars) , (2) , , LoC

Periods of UA /C ONF :

NJP :     S CM :    SPCM:

C C :

- 19960701 :       Offense: Criminal solicitation
         Sentence : Two-year jail sentence (2 year suspended), $399.50 fine , and court costs

Retention Warning Counseling :

- 19960130 :       For failing to meet Physical Readiness Standards of OPNAVINST 6110.1 due to obesity, [Extracted from NAVPERS 1070/ 613 (REV. 10-81) dated 19960130]

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. The Applicant seeks a change to the narrative reason for separation to Secretarial Authority, a change to the corresponding separation code to JFF, and the reentry code changed to RE-1J in accordance with the repeal of the “Don’t Ask, Don’t Tell” policy.

Decision

Date: 201205 31    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. The Applicant submitted one issue related to the equity and propriety of the discharge action for the NDRB’s consideration; additionally, the 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 one NAVPERS 1070/613 (Page 13) retention-counseling warning and no nonjudicial or judicial punishments for any violations of the Uniform Code of Military Justice. However, the Applicant’s service record does document an in-service civil conviction for criminal solicitation of homo sexual acts in a public location. The Applicant accepted a plea agreement in which he agreed to plead guilty to the charge . He was found guilty by the judge and was subsequently ordered to two years of incarceration with the Virginia Department of Corrections, ordered to pay a fine of $399, and to pay for court costs. The incarceration for two-years was suspended on an order of good behavior for two years.

In accordance with the Naval Military Personnel Manual (MILPERSMAN) , (NAVPERS 15560C) Change 14, effective 3 October 1996 until 11 December 1997, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXUAL CONDUCT , the Applicant’s conviction for a homosexual act created a rebuttable presumption that he engaged in, or had the propensity to engage in, homosexual acts. The Applicant chose to rebut this presumption at an administrative hearing board and testified that he was not homosexual, nor did he engage in a homosexual lifestyle, that he did not have a propensity to engage in further homosexual conduct and, finally, that he should be retained. Due to conviction by a civilian court, the administrative hearing board was bound to accept that an act did occur as stated in the discharge notification. T he board further determined that the Applicant had engaged in a homosexual act and that this behavior was the Applicant’s usual and customary behavior. Additionally, the board determined that, based on the nature and circumstances of the Applicant’s statement, coupled with the testimony of others in regards to the Applicant’s homosexual act, a propensity for further homosexual conduct did exist. F inally, the board determined, by a vote of 3-0, that the Applicant should not be retained and that separation was warranted . T he administrative hearing board recommended, by a vote of 3-0, that the discharge characterization should be Honorable . The c ommanding o fficer reviewed the findings of the board and concurred. At the time of discharge, processing for separation was mandatory in accordance with the MILPERSMAN and Department of Defense Policy. Given the detailed documents of record, the Applicant’s personal statement, and the Circuit Court conviction , the NDRB determined that the Applicant’s separation by reason of Homosexual Conduct (Act), in accordance with Article 1910-148 of the MILPERSMAN, was proper and equitable at the time it was issued.



: (Decisional Issue) ( ) PARTIAL . The Applicant seeks a change to the narrative reason for separation to Secretarial Authority, a change to the corresponding separation code to JFF, and the reentry code changed to RE-1J in accordance with the repeal of the “Don’t Ask, Don’t Tell” policy. The Applicant received an Honorable characterizatio n of his service at discharge.

Narrative Reason for Separation: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel & Readiness) memorandum regarding the repe a l 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, the command proposed no other reason for discharge other than homosexual conduct. After detailed review of the documentation of record, coupled with the Applicant’s supporting documentation to his request for discharge revie w, the NDRB determined that relief in the form of a change to the narrative reason for separation shall be granted; the narrative reason for discharge shall change to Secretarial Authority. A dditionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MILPERSMAN 1910-164) and the corresponding SPD code of JFF.

Reentry Code: The Applicant seeks a change to his assigned reentry code at discharge. 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 Appli cant’s service record documents honorable and fa ithful service over a period of 7 years and two enlistments. However, the Applicant’s record of service includes a civilian conviction for Criminal Solicitation and a retention warning for failure to meet the Navy physical readiness standards. 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 board 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, the reentry code shall remain RE-4. Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm. The Applicant is directed to the Addendum for additional information.
Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C) Change 14, effective 3 October 1996 until
11 December 1997, Article 3630400, SEPARATION OF ENLISTED PERSONNEL 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.


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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