Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1400947

Original file (ND1400947.rtf) Auto-classification: Denied

ex-MMFA, USN

Current Discharge and Applicant’s Request

Application Received: 20140408

Characterization of Service Received:

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

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       NONE REQUESTED

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20060812 - 20061112     Active:

Period of Service Under Review:
Date of Current Enlistment: 20061113     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20071001      Highest Rank/Rate: MMFA
Length of Service: Year(s) Month(s) 18 D ay(s)
Education Level:        AFQT: 85
Evaluation M arks:         Performance: 3 .0 ( 1 )      Behavior: 3 .0 ( 1 )        OTA: 3.00

Awards and Decorations ( per DD 214):

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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 seeks an upgrade due to the repeal of the “Don’t Ask, Don’t Tell” policy.

Decision

Date: 20 1 4 0911 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 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 his discharge, and the discharge process, to ensure the action met the pertinent standards of equity and propriety. In May 2007, the Applicant’s command initiated an investigation based upon another Sailor’s allegations that the Applicant sexually harassed him and was a homosexual. On 15 May 2007, the investigation concluded the allegations were true, and the Applicant was notified of administrative separation proceedings for Homosexual Conduct. When notified of administrative separation processing using the administrative board procedure, the Applicant exercised h is rights to consult with a qualified counsel, to submit a written statement, and to appear before an administrative separation board. The board voted 3-0 to recommend separation for Homosexual Conduct with a General characterization of service. The Separation Authority (Commander, Navy Personnel Command) concurred with the board’s recommendations and ordered the Applicant to be discharged.

Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant seeks an upgrade due to the repeal of the “Don’t Ask, Don’t Tell” policy. In accordance with Naval Military Personnel Manual (MILPERSMAN) , 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 statements to h is chain-of-command, coupled with the command investigation, documented that he had engaged in homosexual conduct and created a presumption that he had the propensity to engage in homosexual acts. The Applicant chose not to challenge or to rebut this presumption. 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. When notified of administrative discharge processing, the Applicant was informed, in writing, that the least favorable characterization of service possible was Under Other Than Honorable Conditions. This notification occurred because , in accordance with MILPERSMAN Article 1910-148, an aggravated circumstance existed in that the Applicant had attempted, solicited or committed a homosexual act for compensation. The Applicant elected to appear before an administrative separation board, which recommended a General discharge for Homosexual Act. The Separation Authority approved th eir recommendations.

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 Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The Applicant’s service record reflected an aggravated circumstance associated with a homosexual act. The NDRB determined that repeal of the “Don’t Ask, Don’t Tell ” policy does not negate or mitigate the aggravated circumstance, which remains an aggravated circumstance after the policy’s repeal and still warrants nonjudicial punishment and discharge proceedings. 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 | 2014_Navy | ND1400947

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