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

ex-CTI3, USN
Docket No. ND01-00433

Applicant’s Request

The application for discharge review, received 010222, 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 010629.  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 1910-148 (previously 3630400).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Federal courts have held the discharges of a servicemember with a less than honorable discharge for conduct that (1) does not result in deficiency in performance of the servicemember's military duty and (2) does not have a direct impact on military service, exceeds the military's statutory authority and violates due process.  See Harmon v. Brucker, 355 U.S. 519 (1958); Roelofs v. Secretary of the Air Force, 628 F.2d 594, 8 MI.  L. Rep. 2138 (D.C. Cir. 1980); Kennedy v. Secretary of the Navy, 401 F.2d 990 (D.C. Cir. 1968); Wood v. Secretary of defense, 496 F. Supp. 192. 8 MI.  L. Rep. 2454 (D.D. C. 1980); Stapp v. Resor, 314 F. Supp. 475 (S.D.N.Y. 1970); Doe v. Secretary of the Air Force, 563 F. Supp. 4 (D.D.C. 1982), 4d without opinion, 701 F. 2d 221 (D.C. Cir 1983).

2.  The conduct for, which the applicant was discharged consisted of engaging in one homosexual act with a consenting adult, in a civilian location, on or about 7 February 1998.

3.  The conduct for which the applicant was discharged (1) did not result in deficiency of performance of duty and (2) did not have a direct impact upon military service within the meaning of the cases cited in contention 1.

4.  In characterizing the applicant's discharge, the discharge authority considered the conduct for which the applicant was discharged.

5.  The applicants discharge was improper and inequitable because, in characterizing the applicants discharge, the discharge authority exceeded the military's statutory authority and violated due process by considering the conduct for which the applicant was discharged, conduct which did not result in deficiency in performance of duty and did not have a direct impact on military service.

6.  In view of the validity of contention 5, the applicant's discharge should be recharacterized to Honorable.  See Giles v. Secretary of the Army, 627 F .2d 554, 8 Mil.  L. Rep. 2318 (D.C. Cir. 1980); Dilley v. Ale@r, 627 F.2d 407, 8 Mil.  L. Rep. 2324 D.C. Cir. 1980).

7.  Further, the applicants discharge should be recharacterized to Honorable because if the standards for grading of those separated at expiration of the normal term of service were applied to the applicants overall record of service, excluding consideration of the conduct for which the applicant was discharged, an Honorable discharge would be warranted.

8.  Failure to recharacterize the applicant's discharge to Honorable would violate due process and fundamental principles of administrative law.  It would be inconsistent with DRB decisions to upgrade to Honorable in the following cases in which (1) the conduct for which the applicants were discharged affected their military service and the performance of their military duties to no lesser degree than did this applicant's and (2) the quality of their service may have been inferior to the quality of service of this applicant.  See ND 81-00037 (UD to HD; two homosexual acts occurred on military instillation, but board noted that there was "no indication of adverse impact on discipline and good order or morale caused by the applicant's homosexuality."), ND 780 1 064 (UD to HD- two homosexual acts with consenting partners, 2 NJP's for 51/4 hours UA, missing movement, unlawful possession of alcohol. 3.37 military behavior and proficiency marks, 3.5 overall.), ND 78-01378 (UD to HD; Chief Petty Officer who admitted performing homosexual act with E-4, paying E-3 to perform homosexual acts on him, attempted solicitation of E-2, receiving money from civilians for letting them perform acts on him.  Upgrades to Honorable in Secretarial Review despite DRB holding that solicitation on junior members is considered aggravation since "there was in fact no aggravation surrounding the applicants homosexual activity").

Documentation

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

Personal statement dated December 5, 2000
Statement in deficiency to administrative separation dated April 3, 1998
Copy of Navy and Marine Corps Achievement Medal dated April 11, 1996
Copy of Letter of Commendation for outstanding service during August 1993 to March 1996
Copy of citation for outstanding performance as a translation interpreter from 2 to June 1994
Copy of Letter of Commendation
Copy of Letter of Commendation for outstanding performance
Copy of Good Conduct Award dated August 13, 1995
Copy of Military Excellence Award dated August 2, 1996
Copy of Honorable Discharge certificate dated May 2, 1996
Character references while in the Navy (16)
Copy of evaluation reports from 96May06 to 96Aug13, 97Mar16 to 98Feb09, 96Aug14 to 97Mar15, 95Jun17 to 96Mar15 and 94Jul01 to 95Jun15
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    USN		910814 - 960502	HON
	Inactive:  USNR (DEP)	910129 - 910813	COG

Period of Service Under Review:

Date of Enlistment:  960503		Date of Discharge:  980821

Length of Service (years, months, days):

	Active:    02  00  19
	Inactive:  00  00  00

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  84

Highest Rate:  CTI2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  2.50 (2)		OTA:  2.42

Military Decorations:  NAM

Unit/Campaign/Service Awards:  NDSM, GCM, USAFOA (2), MEA, JMU

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 1910-148 (previously 3630400).

Chronological Listing of Significant Service Events:

980209:	NJP for violation of UCMJ, Article 125: Sodomy; violation of UCMJ, Article 134: General Article.
	Award: Forfeiture of $716.00 per month for 2 months, restriction for 60 days, reduction to CTI3.  No indication in the record of appeal.  

980218:	Applicant notified of intended recommendation for by reason of homosexuality as evidenced by your engaging in, attempting to engage in, or soliciting another to engage in homosexual conduct, and misconduct due to commission of a serious offense as evidenced by your nonjudicial punishment conviction of 9 February 1998 for violation of the UCMJ, Article 125: Sodomy and Article 134: General article.  Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.

980220:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980327:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed homosexual acts and misconduct due to commission of a serious offense and that such acts warranted separation, and recommended discharge under other than honorable conditions.

981009:	Commanding officer recommended discharge under other than honorable conditions by reason of homosexual conduct and misconduct due to commission of a serious offense.  Commanding Officer’s comment’s:  I agree with the board’s findings and recommendations.  Petty Officer E_’s conduct, by his own admission, occurred near a public street in a foreign port while wearing his United States Navy working white uniform.  He was a clearly identifiable representative of the Navy and his country.  His behavior was reprehensible, and a vast departure from the conduct expected of a service member.  I believe a discharge from the Navy with an Other Than Honorable characterization is highly appropriate. 

980603:	BUPERS directed the applicant's discharge 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 980821 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).

The applicant’s first issue states:  “Federal courts have held the discharges of a servicemember with a less than honorable discharge for conduct that (1) does not result in deficiency in performance of the servicemember's military duty and (2) does not have a direct impact on military service, exceeds the military's statutory authority and violates due process.  See Harmon v. Brucker, 355 U.S. 519 (1958); Roelofs v. Secretary of the Air Force, 628 F.2d 594, 8 MI.  L. Rep. 2138 (D.C. Cir. 1980); Kennedy v. Secretary of the Navy, 401 F.2d 990 (D.C. Cir. 1968); Wood v. Secretary of defense, 496 F. Supp. 192. 8 MI.  L. Rep. 2454 (D.D. C. 1980); Stapp v. Resor, 314 F. Supp. 475 (S.D.N.Y. 1970); Doe v. Secretary of the Air Force, 563 F. Supp. 4 (D.D.C. 1982), 4d without opinion, 701 F. 2d 221 (D.C. Cir 1983).”  The NDRB found no impropriety or inequity in the applicant’s discharge.  The record clearly shows that the applicant was found guilty at NJP of violation of UCMJ Articles 125, Sodomy, and 134, General Article.  Both of these offenses are considered serious military offenses that warrant a punitive discharge at court martial.  Contrary to the applicant’s assertion, the Board found the applicant’s misconduct was a significant deficiency in his military duty and had a direct impact on the Naval service.  The Board found the applicant was afforded and exercised his rights as afforded under the UCMJ and that no violation of due process exists.  Relief is denied.

The applicant’s second issue states:  “The conduct for, which the applicant was discharged consisted of engaging in one homosexual act with a consenting adult, in a civilian location, on or about 7 February 1998.”  The applicant’s assertion that his homosexual act occurred with a consenting adult in a civilian location is irrelevant.  The applicant’s misconduct was in violation of UCMJ Article 125, Sodomy and 134, General Article.  Relief is not warranted.

The applicant’s third issue is a repeat of the first.  See issue one.  Relief is not warranted.

The applicant’s fourth issue states:  “In characterizing the applicant's discharge, the discharge authority considered the conduct for which the applicant was discharged.”  The NDRB found no impropriety or inequity in this issue.  The record shows the applicant’s misconduct was such a significant departure from behavior expected of servicemen that it clearly out weighed his otherwise creditable service.  The Other Than Honorable discharge accurately characterizes the applicant’s service.  Relief is denied.

The applicant’s fifth issue states:  “The applicants discharge was improper and inequitable because, in characterizing the applicants discharge, the discharge authority exceeded the military's statutory authority and violated due process by considering the conduct for which the applicant was discharged, conduct which did not result in deficiency in performance of duty and did not have a direct impact on military service.”  The Board found this issue entirely without merit.  The record shows the applicant was afforded and exercised his rights according to regulations in the discharge proceedings.  There is no evidence that the applicant was not afforded due process.  Additionally, there is no impropriety in the discharge authority’s consideration of the applicant’s misconduct in assigning the Other Than Honorable discharge.  Relief is denied.

The applicant’s sixth issue states:  “In view of the validity of contention 5, the applicant's discharge should be recharacterized to Honorable.  See Giles v. Secretary of the Army, 627 F .2d 554, 8 Mil.  L. Rep. 2318 (D.C. Cir. 1980); Dilley v. Ale@r, 627 F.2d 407, 8 Mil.  L. Rep. 2324 D.C. Cir. 1980).”  The Board did not find any impropriety or inequity in the applicant’s discharge.  Relief is not warranted.

The applicant’s seventh issue states:  “Further, the applicants discharge should be recharacterized to Honorable because if the standards for grading of those separated at expiration of the normal term of service were applied to the applicants overall record of service, excluding consideration of the conduct for which the applicant was discharged, an Honorable discharge would be warranted.”  The Board found the Other Than Honorable discharge accurately characterizes the applicant’s service.  The applicant’s documented misconduct outweighed his otherwise creditable service.  Relief is denied.

The applicant’s eighth issue states:  “Failure to recharacterize the applicant's discharge to Honorable would violate due process and fundamental principles of administrative law.  It would be inconsistent with DRB decisions to upgrade to Honorable in the following cases in which (1) the conduct for which the applicants were discharged affected their military service and the performance of their military duties to no lesser degree than did this applicant's and (2) the quality of their service may have been inferior to the quality of service of this applicant.  See ND 81-00037 (UD to HD; two homosexual acts occurred on military instillation, but board noted that there was "no indication of adverse impact on discipline and good order or morale caused by the applicant's homosexuality."), ND 780 1 064 (UD to HD- two homosexual acts with consenting partners, 2 NJP's for 51/4 hours UA, missing movement, unlawful possession of alcohol. 3.37 military behavior and proficiency marks, 3.5 overall.), ND 78-01378 (UD to HD; Chief Petty Officer who admitted performing homosexual act with E-4, paying E-3 to perform homosexual acts on him, attempted solicitation of E-2, receiving money from civilians for letting them perform acts on him.  Upgrades to Honorable in Secretarial Review despite DRB holding that solicitation on junior members is considered aggravation since "there was in fact no aggravation surrounding the applicants homosexual activity").”  The Board found the applicant was afforded and elected to exercise his rights in the discharge proceedings.  There is no evidence the applicant was not afforded his rights.  The NDRB reviews each case based on it’s individual merits and did not find any error in the discharge proceedings in the applicant’s case.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record since discharge.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 31 Aug 98, Article 1910-148 (previously 3630400), Separation 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 “afls10.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