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

 
ex-ABH3, USN
Docket No. ND03-00577

Applicant’s Request

The application for discharge review was received on 20030221.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040628.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority:  MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I served honorably with many letters of commendation and outstanding evaluations.  I do not feel that my sexual orientation has any bearing on my military service.  I feel that, based on my quality of service, I should be granted a fully honorable discharge.”

Documentation

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

Applicant’s DD Form 214
Certificate of Appointment certificate, dated January 16, 1994
Letter of commendation and cover letters

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	900504 - 901025	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  901026		Date of Discharge:  970513

Length of Service (years, months, days):

	Active:    06  06  18
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (34 months extension)

Education Level:  12 1/2			AFQT:  82

Highest Rate:  ABH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.88 (5)	Behavior:  3.72 (5)		OTA:  3.72	4.0
Performance:  3.00 (2)	Behavior:  1.00 (2)		OTA:  2.34	5.0

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, LoC

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority:  MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

911115:	NJP for violation of UCMJ, Article 92: Dereliction in the performance on 911105.
	Award: Forfeiture of $200.00 per month for 1 month, restriction and extra duty for 14 days, reduction to SA.  Restriction and extra duty for 7 days suspended.  No indication in the record of appeal.

960312:	Failed PRT.

970311:	Applicant’s Voluntary Statement made concerning his homosexuality.

970318:	Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by Applicant's statement that he admitted to engaging in homosexual acts.  Applicant advised that if separation is approved, the characterization of service may be general (under honorable conditions).

970318:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970322:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of homosexuality as evidenced by his statement that he had engaged in homosexual acts.

970409:	BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of homosexual conduct acts.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970513 with a general (under 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).

Issue 1.  Homosexual conduct is grounds for separation from the naval service.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by award of one nonjudicial punishment.  The Applicant initiated processing for separation by providing his voluntary statement in which he stated that he had no desire to remain in the Navy and complete his service contract with only five months remaining.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

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