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

 
ex-PNSN, USN
Docket No. ND03-00686

Applicant’s Request

The application for discharge review was received on 20030313.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.
In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area.  No respond was received.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040128.  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:  UNDER OTHER THAN HONORABLE CONDITIONS/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority:  MILPERSMAN, Article 3630400.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I appreciate the opportunity to finally explain my side of the story.  The police officer that appeared at captain mask gave incorrect information.  He stated I was performing a lewd act, which was totally untrue.  But unfortunately the captain believed the officer.  We was parked in a well lit parking lot, the passenger was relieving himself, out the passenger door.  When the officer realized we were in the military he called his station.  Shore patrol picked us up.  We didn’t know what we were being charged with until later.  When I was approached by fellow sailors.  Information that was release to the person on watch that night.  There was no record of this incident logged in the civilian court system.  I was a victim of un-just causes.  Please see my personnel records, as it will reflect my professionalism and dedication to the military.  Please consider my request for an up-grade of my discharge.  For I'm only guilty of being in the wrong place at the wrong time.”

Applicant stated on the application that he has submitted additional issues.  None were found.

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):

	Inactive:  USNR (DEP)	861003 - 861023	COG
	Active:     None

Period of Service Under Review:

Date of Enlistment:  861024		Date of Discharge:  890828

Length of Service (years, months, days):

	Active:    02  10  05
	Inactive:  00  00  00

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rate:  PN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (3)	Behavior:  2.93 (3)		OTA:  3.33

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Homosexuality - engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, authority:  MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

890718:	NJP for violation of UCMJ, Article 125: commit sodomy with another service member. 
	Award:  Forfeiture of $150.00 per month for 2 months, restriction and extra duty for 15 days, reduction to E-3.  No indication in the record of appeal.  

890721:	Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by engaging in, attempting to engage in homosexual acts.  Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.

890721:	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.

890730:	Commanding Officer recommended discharge under other than honorable conditions by reason of homosexuality as evidenced by his engaging in, attempting to engage in homosexual acts.  Commanding Officer’s comments:  “Petty Officer L_ was an excellent performer while assigned to the USS New Jersey…  Although L_ and M_ denied the allegations, I credited the testimony of a Long Beach Marine Patrol Officer who told me at the NJP…that at 0113, on 21 May 1989, he observed L_ and M_ engaged in homosexual acts in L_’s car, which was parked in the shoreline drive area of Long Beach.  The shoreline drive area is about one mile of open public (city) parkland…  The car was parked in a location which is closed after midnight.  The area was well-lighted and the officer testified that very few people were around the area.”

890803:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890828 under other than honorable conditions by reason of homosexual conduct (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.  In accordance with regulations a discharge under other than honorable conditions was warranted in this case because the Applicant’s homosexual act was committed “openly in public view.”  The Applicant’s statements to the Board do not refute the presumption of regularity in this case.  That no civilian charges resulted from this incident is not a basis for relief.  While he may feel that he was the victim of “un-just causes,” the evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Board considered applicant’s record of service but determined that it did not mitigate the misconduct for which he was separated.  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.  Naval Military Personnel Manual, (NAVPERS 15560A), 15 June 1987 until 
14 Aug 91, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXUALITY. 

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