Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1301035

Original file (ND1301035.rtf) Auto-classification: Denied

ex-STG3, USN

Current Discharge and Applicant’s Request

Application Received: 20130327

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)        20020930 - 20030112     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030113     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070530      Highest Rank/Rate: STG3
Length of Service: Y ear( s ) M onth( s ) 18 D a y ( s )
Education Level:        AFQT: 74
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 3.3 ( 4 )        OTA: 3.63

Awards and Decorations ( per DD 214):      RIFLE MM

Periods of UA /C ONF :

NJP :    S CM : SPCM: C C :

Retention Warning Counseling :

- 20051123 :       For failure to be a “shipmate” and stop your shipmate from driving while intoxicated.

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. 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.        The Applicant contends he warrants an upgrade in light of the military’s evolving position on homosexual ity .
2.       The Applicant contends he warrants an upgrade since the sexual act was consensual.
3.       The Applicant contends he served with distinction.

Decision

Date : 20131204             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’s record of service included NAVPERS 1070/613 (Page 13) warning . In addition, the record shows the Applicant was charged with being in violation o f Uniform Code of Military Justice (UCMJ) Article 134 (Indecent acts with another) for engaging in a sexual act with another male onboard the USS NORMANDY. Due to the allegations of a homosexual act occurring, which the commanding officer found to be credible, an investigation into the alleged misconduct was conducted. As a result of the investigation, to include statements provided by the Applicant, it was determined that the Applicant had engaged in a homosexual act. As such, the Applicant was processed for administrative separation. When notified of administrative separation processing using the procedure , the Applicant was advised that the least favorable characterization of service warranted at discharge was Under Other Than Honorable Conditions. The Applicant acknowledged h is understanding of the notification of separation proceedings and h is rights therein; he waived h is rights to consult with a qualified legal defense counsel, to request an administrative hearing board be convened to hear h is case, and to submit a written statement to the Separation Authority for consideration.

: (Decisional) ( ) . The Applicant contends he warrants an upgrade in light of the military’s evolving position o n homosexual ity . He also contends that the sexual act was consensual. In accordance with the Naval Military Personnel Manual (MILPERSMAN), (NAVPERS 15560C), Change 11, effective 29 April 2005 until 15 June 2008, 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 to h is chain-of-command, coupled with the command investigation, documented that he had engaged in a homosexual relationship and created a rebuttable presumption that he had the propensity to engage in homosexual acts. The Applicant chose not to challenge or to rebut this presumption - in writing. Based on the statement made by the Applicant, h is decision not to rebut any presumptions thereafter, and the commanding officer’s belief that the Applicant’s statements were credible, the Applicant was processed administratively for involuntary separation. 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 detailed documents of record, the Applicant’s personal statement, and the commanding officer’s statement in the administrative separation endorsement, the NDRB determined the Applicant’s separation by reason of Homosexual A ct, in accordance with Article 1910-148 of the MILPERSMAN, coupled with the misconduct o f record, was proper and equitable at the time it was issued.

Characterization of Service: Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. Per MILPERSMAN 1910-148, an Under Other Than Honorable Conditions characterization is warranted when during the current term of service, the member attempted, solicited, or committed a homosexual act with aggravating circumstances such as being aboard a naval vessel. Regardless of the Applicant’s sexual orientation , or whether the act was consensual , the NDRB determined he engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Navy by committing a sexual act onboard a warship . Relief denied.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he served with distinction. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Committing a sexual act onboard a naval vessel is one such offense that warrants processing for administrative separation regardless of grade, performance, awards, medals, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. 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 d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall 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.

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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NAVY | DRB | 2013_Navy | ND1301035

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