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

ex-DC3, USN
Docket No. ND03-01276

Applicant’s Request

The application for discharge review was received on 20030723.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Chattanooga, TN.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040525.  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 3 to 2 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.  “Request post-service conduct by considered by the Board with regard to forming a basis for clemency-based relief.”

Documentation

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

Applicant’s DD Form 214
Decisional Document from previous review, dated March 31, 1997
Criminal background check (3 pages)
Letter of recommendation from Pastor, dated May 3, 2003
Letter from Georgia Department of Human Resources, dated April 9, 2002
Letter from State of Tennessee Department of Health
Letter of recommendation, dated October 22, 2002
Annual review, dated September 25, 2001
Performance Evaluation, dated June 8, 2000
Performance Evaluation, dated April 1, 2003
Performance Evaluation, dated January 31, 2003
Performance Evaluation, dated November 1, 2002
Performance Evaluation, dated April 11, 2002
American Cancer Society letter, dated July 8, 2002
Chattanooga Cares letter, dated October 28, 2002
Cleveland State Community College Associate of Applied Science Degree, dated 2003
Cleveland State Community College unofficial transcript, dated May 31, 2003 (3 pages)
Certified Patient Account representative program letter, undated
Certified Patient Account representative letter, dated May 31, 2003
Certified Patient Account representative certificate, dated April 30, 2003
Covenant College transcript, dated June 16, 2003
Roane State Community College transcript, dated February 17, 2003
Covenant College confirmation letter, dated June 9, 2003
Cleveland State, Dean’s List letter, dated January 9, 2003
Cleveland State, President’s List letter, dated June 7, 2002
Cleveland State, Honor Roll letter, dated May 30, 20032
Phi Theta Kappa Society certificate, dated December 6, 2002
Phi Theta Kappa, letter of recommendation, dated November 20, 2002
Hospice Volunteer Training certificate of completion, dated August 1999
Parents as Tender Healers certificate, dated November 6, 2001
Resumé with references
Department of Veterans Affairs Office of Cyber Security certificate, dated January 28, 2003
Department of Veterans Affairs e-mail, dated October 9, 2002
Department of Veterans Affairs, privacy training certificate of completion, dated March 27, 2003
I Can Copy training for cancer patients, dated April 3, 1997 (2 pages)
Palmetto Government benefits admin, step into medicare, Winter 2000
Palmetto Government Training, keeping your payments on the right track, Spring 2001
Palmetto Government Training, trouble shooting, Spring 2000
Palmetto GBA, medicare Part A, undated
Heritage Professional Education certificate, dated October 18, 2000
Rehabilitation of Arthritic disorder, certificate of attendance, dated April 7, 1999
ICD-9 CM coding home health certificate, dated August 8, 2000
Newspaper articles
Letter of reference, dated May 21, 2004
Letter of reference, dated May 19, 2004
Quest Covenant College reference letter, dated May 18, 2004
Covenant College unofficial transcript, dated May 11, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	900313 - 900709	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  900710		Date of Discharge:  930823

Length of Service (years, months, days):

	Active:    03  01  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  51

Highest Rate:  DC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (5)	Behavior:  4.00 (5)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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:

920701:	Applicant’s Voluntary Statement made to Special Agent, NIS, concerning his sodomy/homosexuality.

920727:	Applicant notified of intended recommendation by reason of homosexuality as evidenced by Applicant's statement that you are a homosexual and your admission that you have engaged in homosexual acts during your current enlistment.  Applicant advised, that if separation is approved, the characterization of service may be under other than honorable conditions.

920727:	Applicant advised of 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.

920826:	Medical Evaluation: Does not reveal evidence of psychosis or disabling neurosis at this time.  Does not possess suicidal intentions.  He is not homicidal.  There is not sufficient evidence to warrant the behavioral term, character disorder.  Is not physiologically or psychologically dependent on alcohol.  Recommended for further naval service.

920907:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of homosexuality as evidenced by Applicant's statement and admission that he engaged in homosexual acts during his current enlistment.

921116:	BUPERS directed the Applicant's discharge with a general (under honorable conditions) characterization by reason of homosexual conduct.

930618:	Commanding Officer’s letter to Applicant.

930626:	Applicant advised of 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.  Applicant objects to separation.

930805:	Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge with a general (under honorable conditions) by reason of having engaged in, attempted to engage in or solicited another to engage in a homosexual act or acts as evidenced by his own admission that he engaged in acts of sodomy in the Huntington Hall Barracks during November and December of 1991.

930810:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge with a general (under honorable conditions) by reason of homosexual acts.

930812:	BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of homosexual conduct.

970124:	NDRB documentary record review Docket Number ND97-00446 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930823 with a general (under 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.  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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

The following if provided for the edification of the Applicant.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 21 Jul 94, Article 3630400, SEPARATION OF ENLISTED PERSONNEL BY REASON OF HOMOSEXULAITY.

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