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

 
ex-SN, USN
Docket No. ND04-00391

Applicant’s Request

The application for discharge review was received on 20040107.  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.  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. The Applicant did not respond.

Decision

A documentary discharge 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:  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:

My discharge was inequitable because it was based on accusations by three fellow sailors, that gave three different stories, none of which were verified.  I was addressed about the accusations a couple of days later, and was told that I had to be removed from the “boat”(submarine) because I was responsible for the ships low moral, due to rumor-rumors which I hadn’t heard at that time.  I was a “hot runner” who had just reenlisted for two years as a Sonar Tech, acquiring E-5 status in the process, with a clean military record as well as civilian life at that time.  I was proud to be in the Navy, serving my country, and striving for goal with the help of my Naval Experience.  Based on accusations, I think the discharge was unfair and unfounded, and I respectfully request that you can see fit to upgrade my discharge to honorable.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	870319 - 870419	COG
	Active:    USN			870420 – 900205	HON

Period of Service Under Review:

Date of Enlistment:  900206		Date of Discharge:  900404

Length of Service (years, months, days):

	Active:    00  01  29

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  84

Highest Rate:  STS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.70 (2)	Behavior:  2.40 (2)		OTA:  3.10

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:

900206:	Reenlisted onboard USS A HAMILTON (SSBN617)(BLUE) for 6 years.
 	
900308:	NJP for violation of UCMJ, Article 134: Indecent act with another. 
	Award:  Forfeiture of $400.00 pay per month for 2 months, reduction to E-4.  No indication in the record of appeal.  

900320:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality as evidenced by him engaging in homosexual acts.  Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.

900320:	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 and to submit statements on own behalf either verbally or in writing before and Administrative Board or in writing if an Administrative Board is not convened.  Applicant did object to the separation. 

	Applicant’s statement (undated): [I am writing you in regard to my Captain’s mast and admin discharge.  I feel that the mast itself was done fairly and I was given ample opportunity to speak on my own behalf.  I feel, thought, that for such a situation that more could have been taken into consideration.  Because we were drunk and our accusers claim to have been sober, and we’re responsible for our own actions, it seemed we didn’t have a chance.  There is no evidence of either of us having had preferences for any males before.  There’s enough character references that would argue in our favor.  I feel that whatever really happened that night, no one is going to know for sure but I feel we’re getting the short end of the deal.  I also feel we could have helped out quite a bit.  I think that I showed above average capabilities in qualifying and wanting to learn.  Even though my attitude was brought up, I don’t think I’m the daily Jekyll-Hyde I was made out to be.  I think the Navy had a lot to offer me and I had a lot to offer it.  I guess we’ll never know.  Thanks for the opportunity anyway.]

900321:	Commanding Officer recommended Applicant discharge under other than honorable conditions by reason of homosexuality as evidenced by SNM being found to have committed the offense of violation of UCMJ Auricle 134 (Indecent act with another male crewmember) at NJP on 8 March 1990.

900327:	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 19900404 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.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for indecent acts, thus substantiating the misconduct for which he was separated.  The Applicant contents that his “discharge was inequitable because it was based on accusations by three fellow sailors.” There is no indication in the record that the Applicant appealed his NJP.  The Applicant’s submitted a statement indicating, “I feel the mast itself was done fairly and I was given ample opportunity to speak on my own behalf.”  Further, the Applicant waived his right to request an Administrative Board to contest his separation.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  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.  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