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

  ex-FN, USN
Docket No. ND05-00395

Applicant’s Request

The application for discharge review was received on 20050103.  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 20050512.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I feel I should have the chance to receive my honorable discharge for my service.  I would also like a change in my re-enlistment code, so that I may join the active reserves.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	960530 - 960710	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  960711		Date of Discharge:  980626

Length of Service (years, months, days):

	Active:    01  11  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  10 (GED)		AFQT:  41

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NER

Days of Unauthorized Absence:  None

*No marks found in the service record

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

GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ADMISSION, authority:  MILPERSMAN, Article 1910-148.

Chronological Listing of Significant Service Events:

UNDATED:	Applicant’s Voluntary Statement made to MACM(SW) R_ L. F_, declaring his homosexuality.  [Extracted from Commanding Officer’s message dated 980615]

980609:	Applicant notified of intended recommendation for discharge by reason of homosexuality as evidenced by Applicant's statement where he admitted to being a homosexual.  Applicant advised, that if separation is approved, the characterization of his service may be under other than honorable conditions.  [Extracted from Commanding Officer’s message dated 980615]

980609:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights.  [Extracted from Commanding Officer’s message dated 980615]

980615:	Commanding Officer recommended discharge with type warranted by service record by reason of homosexuality as evidenced by his unsolicited statement that he is a homosexual.  Commanding Officer’s comments (verbatim):  “I request that SNM is separated from the naval service with an honorable discharge.  I accept as credible the unsolicited signed written statement made by SNM and assess it as indicative of a likelihood he will engage in homosexual acts in the future.  I find no evidence of the aggravating circumstances outlined in MILPERSMAN 3630400.5C, nor do I find evidence for dual or multiple processing in this case.  SNM’s conduct precludes the potential for future naval service.

980618:	BUPERS directed the Applicant's discharge with characterization as based on service record review by reason of homosexual admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980626 with a general (under honorable conditions) by reason of homosexuality - homosexual admission (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1:  In the Applicant’s case, the characterization of service should have been “type warranted by service record as directed by the Bureau of Personnel.”  A characterization of service of under honorable conditions (general) 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.  However, in the absence of the Applicant’s performance evaluations, the Board presumed regularity and found the discharge proper and equitable.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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.  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 18, effective 12 Dec 97 to 31 Aug 98, Article 1910-148 (previously 3630400), Separation by Reason of Homosexual Conduct.

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

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

D.  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.

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