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

 ex-EOCN, USN 
Docket No. ND03-00724

Applicant’s Request

The application for discharge review was received on 20030319.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040224.  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/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.  “Please review my service record and all Legal Documents.  It has been show in the Board testimony that personnel were over herd in the club discussing their stories, looking at the personnel records of members whom made these statements show that they were all poor performers and all wound up being discharged for various amount of problems, even during the ADSEP Board not all my accusers were present to be questioned.  Why was I never allowed to have a full & throughout investigation, nor did I receive legal counseling on all my avenues o f appeal.  I was refused the right to receive a general court martial.  If you have all the legal statements read them and you’ll see they don’t make any sense.  I was isolated on a small island were I was forced to make an attempt in defending myself, under that amount of stress that doesn’t work.  Please review all information about the terrible event read the other enclose into I hope written out, help me change my discharge, and heal a broken heart that was never aloud to fulfill my military career.  My discharge was totally improper due to the way NAF ADAKS Legal Depart did my legal counsel conducted the whole thing.”

Documentation

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

Statement in support of claim, undated
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	790924 - 800622	COG
	Active:    USN			800623 - 840426	HON
		    USN		840427 – 891224	HON
		    USN		891225 – 921217	HON

Period of Service Under Review:

Date of Enlistment:  921218		Date of Discharge:  941103

Length of Service (years, months, days):

	Active:    01  10  16
	Inactive:  None

Age at Entry:  30			Years Contracted:  3

Education Level:  12			AFQT:  47

Highest Rate:  EO1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.85 (4)	Behavior:  3.15 (4)		OTA:  3.15

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (6), ASM, MUC, NUC, GCM, OSR, NDSM, ASAM with Bronze Star

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 3630400.

Chronological Listing of Significant Service Events:

940520:	Incident/Complaint report.

940814:	Applicant’s statement.

940817:	Applicant notified of intended recommendation for by reason of homosexuality as evidenced by engaged in homosexual acts.  Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.

940817:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

940818:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant committed homosexual acts and that such acts warranted separation, and recommended discharge under other than honorable conditions.

940916:	Commanding Officer recommended discharge with a honorable by reason of homosexuality as evidenced by engaged in homosexual acts.

941012:	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 19941103 under other than honorable conditions by reason of homosexuality – homosexual act (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.  The Applicant was afforded the appropriate due process during the processing of his case, including an administrative discharge board review.  The Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant committed homosexual acts and that such acts warranted separation, and recommended discharge under other than honorable conditions. There is no evidence of impropriety, inequity, or procedural irregularities in the Applicant's discharge and an upgrade of the Applicant’s discharge to an honorable characterization is not warranted.  Relief denied.

The following is provided for the edification of the applicant.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments at that time.  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 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