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

 ex-MSSN, USN
Docket No. ND00-00324

Applicant’s Request

The application for discharge review, received 000112, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000817.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/HOMOSEXUAL ACT, authority: MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member avers that the allegations of indecent assault, the basis of his UOTHC discharge, were never proven.  Therefore, he opines that recharacterization of his service period to honorable is warranted.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
Four pages from applicant's service record

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:    None
	Inactive:  USNR (DEP)	940421 - 940606	COG

Period of Service Under Review:

Date of Enlistment:  940607		Date of Discharge:  980213

Length of Service (years, months, days):

	Active:    03  08  07
	Inactive:  00  00  00

Age at Entry:  24			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.56 (5)	Behavior:  3.75 (4)		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, SASM with Bronze Star, AFSM, NATO, NER, GCM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/HOMOSEXUAL ACT), authority:  MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

980116:	NJP for violation of UCMJ, Article 134: Assault - indecent by the touching of a male shipmate's genitals on 13 January 1998.
	Award:  Forfeiture of $200.00 per month for 1 month, reduction to MSSN.  No indication in the record of appeal.  
980122:	Applicant notified of intended recommendation for by reason of homosexuality as evidenced by applicant's statement that he engaged in homosexual acts.  Applicant advised, that if separation is approved, the characterization of his service may be under Other Than Honorable conditions.  [Extracted from Commanding Officer’s message dated 27JAN98.]

980122:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights.  [Extracted from Commanding Officer’s message dated 27JAN98.]

980127:	Commanding officer recommended discharge under Honorable conditions (General) by reason of homosexuality as evidenced by his had engaged in homosexual acts.   Commanding officer’s comments (verbatim):  “On 13 Jan 98, a male crewmember reported to our officer of the deck that another crewmember, MSSN (applicant), had been in the berthing fondling him in the crotch area in a manner which was unmistakably sexual in nature.  The crewmember felt that the incident happened three times within a matter of 30 minutes during that night while the assailant thought the crewmember was asleep.  When the assaulted crewmember opened his rack curtain, the only person in the vicinity of his rack was MSSN (applicant).  During the investigation conducted by my chief master at arms (CMAA), MSSN (applicant) did not admit to the indecent assault, but did state that he felt that he had homosexual tendencies.  At no time during the investigation did the CMAA ask MSSN (applicant) if he was homosexual.  During questioning by my executive officer, he again denied the indecent assault charge and reiterated that he had homosexual tendencies.  I subsequently found him guilty of the indecent assault charge as explained in para 5 above.  MSSN (applicant) was part of the precommissioning crew and his performance and record until this event were superb.  Based on this performance, I strongly recommend that he be separated with a general characterization of discharge.

980206:	BUPERS directed the applicant's discharge with an under Other Than Honorable conditions by reason of homosexual conduct acts.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980213 with an under Other Than Honorable conditions by reason of homosexuality - homosexual acts (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant petitions an equity issue, in that the allegations of indecent assault, the basis of his OTHC discharge, were never proven.  During an investigation conducted by the Chief Master At Arms, the applicant did not admit to the indecent assault but did state that he felt he had homosexual tendencies.  A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts.  Separation processing is mandatory, if the Commanding Officer believes that, by a preponderance of the evidence, homosexual conduct has occurred.  It was the belief of the applicant’s Commanding Officer that there was enough evidence that a homosexual act did occur.  The discharge was proper and equitable.  Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit.  The applicant petitions an equity issue, in that he requests that the Board consider clemency based on his post-service conduct.  The applicant did not provide any documentation to support a claim for post-service clemency.  The discharge was proper and equitable.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C) Change 14, effective 
03 Oct 96 until 11 Dec 97, Artic	le 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXUAL CONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023