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

 ex-SA, USN
Docket No. ND00-00895

Applicant’s Request

The application for discharge review, received 000714, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010125.  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:  UNCHARACTERIZATION (ENTRY LEVEL SEPARATION)/HOMOSEXUAL CONDUCT ACT, authority:  MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I A B_____ made a false statement in Navy Boot camp involving my sexual orientation I was unaccos to my new decision of joining the Navy and wanted to leave when things became tough.  I realize the ____ of my ways.  I am heterosexual and I believe in god who knows the truth.  I have no need for documentation to prove my case.  The reason being I gave verbal testimony in the navy they did not catch me in any homosexual acts of any sort.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    USN		None
	Inactive:  USNR (DEP)	970331 - 970527	COG

Period of Service Under Review:

Date of Enlistment:  970528		Date of Discharge:  970724

Length of Service (years, months, days):

	Active:    00  01  27
	Inactive:  00  00  00

Age at Entry:  24			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  62

Highest Rate:  SA

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 ACTS, authority:  MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

970612:	Applicant’s Voluntary Statement made to MA2 H_____, concerning his homosexuality.

970616:	Applicant notified of intended recommendation for by reason of homosexual or bisexual, or words to that effect, which creates a rebut table presumption that he or she engage in, attempt to engage in, has a propensity to engage in, or intends to engage in homosexual acts; and member engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts.  Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.

970616:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

Undated:	Commanding officer recommended discharge with type warranted by service record by reason of homosexual or bisexual, or words to that effect, which creates a rebut table presumption that he or she engage in, attempt to engage in, has a propensity to engage in, or intends to engage in homosexual acts; and member engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts.

970710:	BUPERS directed the applicant's discharge with characterization as type warranted by service record by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970724 with an uncharacterized (entry level separation) by reason of homosexual 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 issue states:  “1.  I A B_____ made a false statement in Navy Boot camp involving my sexual orientation I was unaccos to my new decision of joining the Navy and wanted to leave when things became tough.  I realize the ____ of my ways.  I am heterosexual and I believe in god who knows the truth.  I have no need for documentation to prove my case.  The reason being I gave verbal testimony in the navy they did not catch me in any homosexual acts of any sort.”  There is nothing in the record or provided by the applicant that supports this issue.  The applicant made a statement regarding his homosexuality and intention of conducting homosexual acts while on active duty.  There is no reason the Board should discount this signed statement.  Relief is not warranted.

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, 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	

RECORD OF VOTE

BOARD MEMBER			CHARACTER		BASIS/REASON 

D.L. STOVER-KENDRICK		Relief not warranted		Relief not warranted
COL, USMCR, President

W. BURKE, JR., CDR, USN		Relief not warranted		Relief not warranted
Member

P.A. HAYES, LCDR, USN		Relief not warranted		Relief not warranted
Member

L.J. NEVEL, LT, USN		Relief not warranted		Relief not warranted
Member

C. BUCHHEISTER, LCDR, USN	Relief not warranted		Relief not warranted
Recorder 

A.  The Naval Military Personnel Manual, (NAVPERS 15560C) Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXUAL CONDUCT, states:1.  Basisa.  The policy of the Navy is to judge the suitability of persons to serve in the Navy on the basis of conduct and their ability to meet required standards of duty, performance, and discipline; to distinguish sexual orientation, which is personal and private, from homosexual conduct; and to make clear the procedural rights of a service member.

b.  Homosexual conduct is grounds for separation from the naval service.  Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage.  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.  Sexual orientation is considered a personal and private matter, and is not a bar to continued service unless manifested by homosexual conduct as defined below.  Therefore, separation processing is mandatory, if the commanding officer believes that, by a preponderance of the evidence, homosexual conduct as defined below has occurred.  All proceedings will follow paragraph 4 regarding fact-finding.  The verbatim reason for processing on the member's Notice of an Administrative Procedure Proposed Action and Statement of Awareness and Request for, or Waiver of, Privileges is:

Homosexual conduct as evidenced by:

(1) member's statement that he or she is a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that he or she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts;

(2) member engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts; and/or

(3) member's marriage or attempted marriage to a person known to be of the same biological sex.

c.  A member shall be separated by reason of homosexual conduct if one or more of the following approved findings is made:

(1) The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, unless there are further approved findings that:

(a) such acts are a departure from the member's usual and customary behavior;

(b) such acts, under all of the circumstances, are unlikely to recur;

(c) such acts were not accomplished by use of force, coercion, or intimidation;

(d) under the particular circumstance of the case, the member's continued presence in the
naval service is consistent with the interest of the naval service in proper discipline, good order, and morale; and

(e) the member does not have a propensity or intent to engage in homosexual acts.

(2) The member has made a statement that he or she is a homosexual or bisexual, or words to that effect, unless there is a further approved finding that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  A statement by a member that he or she is a homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the member engages in, attempts to engage in, has a propensity to engage in or intends to engage in homosexual acts.  The member shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence demonstrating that he or she does not engage in, attempt to engage in, have a propensity to engage in, or intends to engage in homosexual acts.  Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts.  In determining whether a member has successfully rebutted the presumption that he or she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, some or all of the following may be considered:

(a) whether the member has engaged in homosexual acts;

(b) the member's credibility;

(c) testimony from others about the member's past conduct, character, and credibility;

(d) the nature and circumstances of the member's statement; and

(e) any other evidence relevant to whether the member is likely to engage in homosexual
acts.

This list is not exhaustive.  Any other relevant evidence may also be considered.

(3) The member has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved).

2.  Definitions.  Some definitions as used in this article are:

a.  Homosexual - a person, regardless of sex, who engages in, attempts to engage in, has a
propensity to engage in, or intends to engage in homosexual acts.

b.  Bisexual - a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual and heterosexual acts.

c.  Homosexual act - (1) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and (2) any bodily contact that a reasonable person would understand to demonstrate a propensity or intent to engage in such an act as described in subparagraph (1) above.

d.  Homosexual conduct - a homosexual act, a statement by the member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage.

e.  Statement that a member is a homosexual or bisexual, or words to that effect language or behavior that a reasonable person would believe was intended to convey the statement that a person engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts.

f.  Sexual orientation - an abstract sexual preference for persons of a particular sex, as distinct from a propensity or intent to engage in sexual acts.

g.  A homosexual marriage or attempted marriage - marriage or attempted marriage to a person known to be of the same biological sex.

h.  Propensity to engage in homosexual acts - more than an abstract preference or desire to engage in homosexual acts; indicates a likelihood that a person engages in or will engage in homosexual acts.

i.  Commander - a commissioned or warrant officer who, by virtue of rank and assignment, exercises primary command authority over a military organization or prescribed territorial area that under pertinent official directives is recognized as a "command."

3.  Procedures

a.  The Administrative Board procedure (Article 3640200.7 and 8) shall be used in all
cases with the following modifications: When processing is based on homosexual conduct as evidenced by member's statement that he or she is a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption that he or she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, then replace paragraph 4b of the Notice of an Administrative Board Procedures Proposed Action, Letter of Notification to read, "to present verbal or written statements in your behalf, and to present evidence demonstrating that you do not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts," and add the additional right to paragraph 4 of members Statement of Awareness and Request for, or Waiver of Privileges (SOA) to read, "to present evidence demonstrating that I do not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts."

b.  The administrative board, if elected, shall follow the procedures for a hearing set forth in Article 3640350.2 except with respect to the following matters; if the board finds that one or more of the circumstances authorizing separation under subparagraph lc(l) through (3) is supported by the evidence, the board shall recommend separation unless the administrative board finds that retention is warranted under the limited circumstances described in subparagraphs 3a(l) through (5).

c.  If the administrative board, if elected, does not find that there is sufficient evidence that one or more of the circumstances authorizing separation under subparagraphs 1c(l)(a) through (e) has occurred, the board shall recommend retention, unless the case involves another basis for separation of which member has been notified.

d.  If member waives his or her right to an administrative board, the Chief of Naval Personnel (CHNAVPERS) will assess all evidence presented and serve as sole separation authority.

e.  Members being processed for homosexual conduct must be dual or multiple processed for all reasons for which minimum criteria are met (See Article 3 610240. 1h).  For example, a member who admits to homosexual acts while making a statement that he or she is a homosexual or bisexual must be dual processed for homosexual statement and homosexual acts.  Separate findings must be made for each reason for processing.

f.  Burden of proof.  The member shall bear the burden of proving throughout the proceeding by a preponderance of the evidence that retention is warranted under the limited circumstances described in subparagraphs 1c(l)(a) through (e).

g.  Nothing in this article requires that a member be processed for separation when a determination is made that:

(1) the member engaged in acts, made statements, married or attempted to marry a person known to be of the same biological sex for the purpose of avoiding or terminating military service; and

(2) separation of member would not be in the best interest of the naval service.

h.  CHNAVPERS is separation authority in all cases, regardless if member had an admin board or was processed for ADSEP in lieu of trial by court-martial.

i.  Forward processed case by letter of transmittal to the Bureau of Naval Personnel (Pers-83).  Ensure member's full name, rate, and SSN have been indicated on each page of the case.  Refer to Article3640200.lld(2) for message submission option in those cases where member waives an administrative board.

4.  Fact-finding

a.  Responsibility

(1) Only the member's commander as defined in subparagraph li is authorized to initiate
fact-finding inquiries involving homosexual conduct.  A commander may initiate a fact-finding inquiry only when he or she has received credible information that there is basis for discharge.  Commanders are responsible for ensuring that inquiries are conducted properly and that no abuse of authority occurs.

(2) A fact-finding inquiry may be conducted by the commander personally or by a person he or she appoints.  It may consist of an examination of the information reported or a more extensive investigation, as necessary.

(3) The inquiry should gather all credible information that directly relates to the grounds for possible separation.  Inquiries shall be limited to the factual circumstances directly relevant to the specific allegations.

(4) If a commander has credible evidence of possible criminal conduct, he or she shall follow the procedures outlined in the Manual for Courts-Martial and implementing regulations issued by the Secretary of the Navy.

b.  Basis for Conducting Inquiries

(1) A commander will initiate an inquiry only if he or she has credible information that there is a basis for discharge.

(2) A basis for discharge exists if.-

(a) the member has engaged in a homosexual act;

(b) the member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts; or

(c) the member has married or attempted to marry a person of the same sex.

(3) Credible information does not exist, for example, when:

(a) the individual is suspected of engaging in homosexual conduct, but there is no credible information, as described, to support that suspicion; or

(b) the only information is the opinions of others that a member is homosexual; or

(c) the inquiry would be based on rumor, suspicion, or capricious claims concerning a member's sexual orientation;

(d) the only information known is an associational activity such as going to a homosexual bar, possessing or reading homosexual publications, associating with known homosexuals, or marching in a homosexual rights rally in civilian clothes.  Such activity, in and of itself, does not provide evidence of homosexual conduct.

(4) Credible information exists, for example, when:

(a) a reliable person states that he or she observed or heard a service member engaging in
homosexual acts, or saying that he or she is homosexual or bisexual or is married to a member of the same sex;

(b) a reliable person states that he or she heard, observed, or discovered a member made a spoken or written statement that a reasonable person would believe was intended to convey the fact that he or she engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts; or

(c) a reliable person states that he or she observed behavior that amounts to a non-verbal statement by a member that he or she is a homosexual or bisexual; i.e., behavior that a reasonable person would believe was intended to convey the statement that the member engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts.

c.  Procedures

(1) Informal fact-finding inquiries and administrative separation procedures are the
preferred method of addressing homosexual conduct.  This does not prevent disciplinary action or trial by courts-martial when appropriate.

(2) Commanders shall exercise sound discretion regarding when credible information exists.  They shall examine the information and decide whether an inquiry is warranted or whether no action should be taken.

(3) Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal whether a member is a heterosexual, homosexual, or bisexual.  However, upon receipt of credible information of homosexual conduct (as defined in subparagraph 2d), commanders or appointed inquiry officials may ask members if they engaged in such conduct.  But the member should first be advised of the Department of Defense policy (DOD Directive 1332.14) on homosexual conduct and his or her rights under the Uniform Code of Military Justice, Article 31b, if appropriate.  Should the member choose not to discuss the matter further, the commander should consider other available information.  Nothing in this provision precludes questioning a member about any information provided by the member in the course of the fact-finding inquiry or any related proceedings, nor does it provide the member with any basis for challenging the validity of any proceedings or the use of any evidence, including a statement by the member in any proceeding.

(4) At any given point of the inquiry, the commander or appointed inquiry official must be able to clearly and specifically explain which grounds for separation he or she is attempting to verify and how the information being collected relate to those specific separation grounds.

(5) A statement by a member that he or she is homosexual or bisexual, or words to that effect, creates a rebuttable presumption that the member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  The member shall be given the opportunity to present evidence demonstrating that he or she does not engage in, or attempt to engage in, or have a propensity or intent to engage in homosexual acts.

(6) The member bears the burden of proving, by a preponderance of evidence, that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

(7) The above procedures create no substantive or procedural rights.

5.  Characterization or Description.  Honorable, unless:

a.  An Entry Level Separation is required in paragraph 3a of Article 3610250;

b.  characterization of service as General is warranted in  paragraph 2b of Article
3610250; or

c.  characterization of service as Other Than Honorable is warranted based on a finding that during the current term of service the member attempted, solicited, or committed a homosexual act under any of the following circumstances:

(1) by using force, coercion, or intimidation;

(2) with a person under 16 years of age;

(3) with a subordinate in circumstances that violate customary naval superior-subordinate
relationships;

(4) openly in public view;

(5) for compensation;

(6) aboard a naval vessel or aircraft; or

(7) in another location subject to naval control under aggravating circumstances that have
an adverse impact on discipline, good order, or morale comparable to the impact created by such activity aboard a vessel or aircraft.