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

  ex-SHSR, USN
Docket No. ND05-00343

Applicant’s Request

The application for discharge review was received on 20041217.  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 20050616.  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)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation

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

None were submitted.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930413 - 930420	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  930421		Date of Discharge:  960607

Length of Service (years, months, days):

	Active:    03  01  17 (Does not exclude lost time.)
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rate:  SHSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (2)		Behavior:  3.70 (2)		OTA:  3.70  4.0 evals
Performance:  3.00 (1)		Behavior:  1.00 (1)		OTA:  2.67 5.0 eval

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), BER (2), .38 CP (E)

Days of Unauthorized Absence:  57

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

941223:	Applicant completed ARC Level III at Rota, Spain. [Extracted from 960401 Preliminary Investigation Concerning Alleged Homosexuality].

951002:	Applicant to unauthorized absence 0630, 951002.

951010:	Applicant from unauthorized absence 1540, 951010 (8 days/surrendered).

951017:	NJP for violation of UCMJ, Article 86: Unauthorized leave on 951002, violation of UCMJ, Article 87: Missing movement on 951002.  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 960409.]

960204:	Applicant to unauthorized absence 0745, 960204.

960304:	Applicant declared a deserter.

960326:	Applicant from unauthorized absence 1820, 960326 (49 days/surrendered).

960328:	Applicant transferred from NAVSTA San Diego, CA to USS PONCE (LPD 15) on 1030, 960328.

960328:	Vacate suspended reduction to SHSA awarded at CO’s NJP dated 951017 due to continued misconduct.

960328:	NJP for violation of UCMJ, Article 85: Desertion, violation of UCMJ, Article 87: Missing ship’s movement.
	Award: Forfeiture of $437.40 per month for 2 months, restriction and extra duty for 45 days, reduction to SHSR.  No indication of appeal in the record.

960401:	Applicant interviewed by Investigating Officer during a Preliminary Investigation concerning the Applicant’s statements he made at NJP on 960328.  Applicant admitted that he is a homosexual.

960404:	Applicant notified of intended recommendation for discharge by reason of homosexual conduct.  The least favorable characterization of service authorized in your case is General.

960404:	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.

960409:	Commanding Officer, USS PONCE, recommended discharge by reason of homosexual conduct.

960507:	BUPERS directed the command to reprocess Applicant for all reasons for which the minimum criteria are met.

960521:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and misconduct due to homosexual conduct as evidenced by your statement that “I am a homosexual, or words to that effect, which creates a rebuttable presumption that you engage in, attempt to engage in, have a propensity to engage in, or intent to engage in homosexual acts and homosexual conduct as evidenced by you engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts”.  Nonjudicial punishment on March 28, 1996 for deserter and missing movement, in violation of Article 85 and Article 87, UCMJ.  The characterization of your service may be Other Than Honorable.

960521:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960605:	BUPERS directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960607 general (under honorable conditions) for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The Applicant introduced no decisional issues for consideration by the Board.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Applicant’s misconduct is clearly documented.  Therefore, relief is denied.

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 2 nonjudicial punishment proceedings for violations of Articles 85(desertion), 86 (unauthorized absence), and 87 (2 specs of missing movement) of the UCMJ.  Desertion and missing movement are both considered serious offenses by the UCMJ.  On, 19960328, the suspended reduction –in- rank awarded at the first NJP was vacated due to continued misconduct.  Further, the Applicant admitted to the CO that he engaged in homosexual conduct. 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 is not warranted.

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 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for more than 30 days, and, Article 87, missing movement, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023