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

ex-SN, USN
Docket No. ND00-00852

Applicant’s Request

The application for discharge review, received 000622, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant listed Civilian Counsel as her representative on the DD Form 293.  In the acknowledgement letter to the applicant, she was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010111.  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:  UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/HOMOSEXUAL CONDUCT ACT), authority:  MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  False, vague, and highly contradictory allegations of homosexuality by a clique led to applicant's separation from the navy.  The navy recognized the weakness of the absurd charge, substituting an uncharacterized discharge for the UOTHC.  However, even an "uncharacterized" discharge is wrong.  Applicant deserves an honorable discharge.

2.  An uncharacterized certificate often marks it's recipient as inept.  This can prevent applicant from obtaining a decent livelihood because doors are closed to her.

3.  The instruction in question bans, obviously sexual conduct; that is not what occurred here, where applicant merely demonstrated concern for a friend. 

Documentation

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

Copy of DD Form 214
Letter from Attorney at Law (6pgs)
Copy of Voluntary Statement from RM1 L____ (2pgs) 
Copy of Trainee Standards of Conduct (8pgs)
Copy from Investigating Report (1pg)
Copy of Counseling/Warning
Photographs (Applicant and Prom date, NJROTC, applicant and boyfriend)
Copy of Administrative Discharge Proceedings (2pgs)
Copy of Newspaper Article (Gay bias starts at the top)
Letter from Applicant (2pgs)

PART II - SUMMARY OF SERVICE

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

	Active:    USN		None
	Inactive:  USNR (DEP)	951127 - 960318	COG

Period of Service Under Review:

Date of Enlistment:  960319		Date of Discharge:  960917

Length of Service (years, months, days):

	Active:    00  05  29
	Inactive:  00  00  00

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  39

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None 

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

UNCHARACTERIZED (ENTRY LEVEL SEPARATION) HOMOSEXUAL CONDUCT ACT, authority: MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

960418:	Statement from M___ C. V_____.

960419:	Voluntary Statement from SR M___ C. V_____.

960417:	Statement from SR M______.

960419:	Voluntary Statement from SR C____ B. M____ to AME2 (AW) W.F. S_____ (RTC Command Investor). 

960422:	Voluntary Statement from SR K____ N. H____ to AME2 (AW) W.F. S_____ (RTC Command Investor).

960514:	Statement from J____ H. B____.

960516:	NJP for violation of UCMJ, Article 92: (3 Specifications), Spec 1: Did on numerous occasions during April 1996, fail to obey a lawful order by wrongfully laying in a rack with FR L____ B____, USN, after taps; Spec 2: Did on numerous occasions during April 1996, fail to obey a lawful order by wrongfully kissing and hugging FR L____ B____, USN; Spec 3: Did on numerous occasions during April 1996, fail to obey a lawful order by wrongfully running her fingers through the hair of FR L____ B_____, USN. 
	Award:  Forfeiture of $509.00 per month for 2 months, restriction and extra duty for 20 days.  No indication in the record of appeal.  

960516:	Retention Warning:  Advised of deficiency (VUCMJ, Art. 92 (3 Specifications): Failure to obey orders and regulations), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960529:	Applicant notified of intended recommendation for administrative discharge from the naval service by reason of homosexuality conduct as evidenced by your engaging in, attempting to engage in, or soliciting another to engage in homosexual acts and misconduct due to commission of a serious offense as evidence by all punishments under the UCMJ in current enlistment.  Applicant advised, that if separation is approved, the characterization of her service may be under other than honorable conditions.

960531:	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960609:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed homosexual conduct and committed misconduct due to commission of a serious offense and that such acts warranted separation, and recommended discharge under other than honorable conditions.

960703:	Voluntary Statement from RM1 (AW) A____ M. L____ to CE1 A____ L. D_____ (Command Investigator).

960826:	Commanding officer recommend applicant discharge general under honorable conditions by reason of homosexuality and misconduct due to commission of a serious offense.  

960916:	BUPERS directed the applicant's discharge with uncharacterized (entry level separation) by reason of homosexual conduct acts.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960917 with an UNCHARACTERIZED ENTRY LEVEL SEPARATION by reason of homosexuality conduct acts.  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).

The applicant’s first issue states:  “False, vague, and highly contradictory allegations of homosexuality by a clique led to applicant's separation from the navy.  The navy recognized the weakness of the absurd charge, substituting an uncharacterized discharge for the UOTHC.  However, even an "uncharacterized" discharge is wrong.  Applicant deserves an honorable discharge.”  The NDRB found no impropriety or inequity in the applicant’s discharge.  Relief is not warranted.

The applicant’s second issue states:  “An uncharacterized certificate often marks it's recipient as inept.  This can prevent applicant from obtaining a decent livelihood because doors are closed to her.”  The Board found this issue irrelevant.  The applicant’s discharge and reason for discharge accurately characterized her service.  Relief is not warranted.

The applicant’s third issue states:  “The instruction in question bans, obviously sexual conduct; that is not what occurred here, where applicant merely demonstrated concern for a friend. “  The record shows the applicant participated in homosexual conduct/ acts and accordingly warranted discharge.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective  22 Jul 94 until 02 Oct 96, Article 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