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

 ex-MM3, USN
Docket No. ND04-00315

Applicant’s Request

The application for discharge review was received on 20031210.  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 review was conducted in Washington, D.C. on 20040910.  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 ADMISSION, authority:  MILPERSMAN, Article 1910-148 (previously 3630400).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on one isolated incident in 42 months of service with no other adverse action.”

Documentation

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

Reference Letter from Education Minister W_ A. T_ dated August 2, 2003
Reference Letter from Rev G_ V. L_ dated August 7, 2003
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	990730 - 990818	COG
	Active:    USN			None

Period of Service Under Review:

Date of Enlistment:  990819		Date of Discharge:  030225

Length of Service (years, months, days):

	Active:    03  06  07
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (24 months extension)

Education Level:  15			AFQT:  87

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.25 (4)	Behavior:  3.00 (5)		OTA:  3.11

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 ADMISSION, authority:  MILPERSMAN, Article 1910-148 (previously 3630400).

Chronological Listing of Significant Service Events:

010124:	NJP for violation of UCMJ, Article 92: Violate a lawful order on 010118 by purchasing alcoholic beverages for persons under the age of 21; violation of UCMJ Article 128: Did unlawfully strike MM3 S_ M. H_, USN on or about 010121; violation of UCMJ, Article 134: (2 Specifications), Did commit conduct which was of a nature to bring discredit upon the Armed Forces on or about 010119 and 010121. 
	Award:  Oral admonition, restriction to Sub Base New London for 45 days (suspended for 6 months), forfeiture of $100.00 per month for 2 months, reduction to E-4.  No indication in the record of appeal.  

021014:	Applicant’s Voluntary Statement made to CDR H_, concerning his homosexuality.

021121:	Commanding Officer recommended Applicant’s discharge general (under honorable conditions) by reason of homosexuality as evidenced by member’s statement that he is a homosexual or bisexual or words to that effect, which creates a rebuttable presumption that he or she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts and by reason of misconduct due to commission of serious offense.

030205:	Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by member’s statement that he is a homosexual or bisexual or words to that effect, which creates a rebuttable presumption that he or she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts and misconduct due to commission of serious offense.  Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.

030205:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

030205:	CNMPC directed the Applicant’s discharge general (under honorable conditions) by reason of homosexual (admission).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030225 with a general (under honorable conditions) by reason of homosexuality - homosexual admission  (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 contends that his discharge was inequitable because it was based on one isolated incident in forty-two months of otherwise honorable service.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge 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 nonjudicial punishment proceedings for violations of Articles 92, 128 and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief denied.

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.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

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 or any other evidence related to his discharge 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), re-issued October 2002, effective 22 August 2002 until Present, 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 “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