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

  ex-OSSN, USN
Docket No. ND05-00422

Applicant’s Request

The application for discharge review was received on 20050112.  The Applicant requests the reason for the discharge be changed to Convience of Government.  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 20050428.  After a thorough review of the available 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 reason for discharge shall not change.  The discharge shall remain:  HONORABLE/ 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.  “After an incident occurred on my first West Pac.  I tried to file a Grievance Report on a First Class Petty Officer for sexual harassment and hardship from other shipmates.

During mid- tour, on a replenishment cycle, I was working on the Mess Decks.  I was helping with stocking food supplies when I was told to stay afterwards (in one of the storage areas) and finish, even though the rest of the crew was done.  The Petty Officer in charge and myself were in the storage room when he started to ask strange questions and wanted to know more about my personal life, family and so on.  After awhile I was questioning why it was taking such a long time to leave the storage room.  When I tried to leave the area because I was feeling uncomfortable, he blocked me.  He began to behave inappropriately by groping himself in a lewd manner, which I found to offensive.  He then implied that he wanted a favor.  At that point I pushed my way out of the storage room and went back to the mess deck to finish my duties.  I was so upset and embarrassed by want happened that I didn’t know what to do.  After several days the Petty Officer would make gestures towards me to stay quiet.  I further asked another department head how I go about filing a report against someone.  After filing the report the Petty Officer retaliated by spreading rumors about me.  Which caused extreme uneasiness and threats by my fellow shipmates.  I did not feel safe and comfortable any longer.  One example of a threat by a fellow shipmate was he “wanted to throw an Apple overboard”, Apple being my last name, was assumed as a threat.  Continued comments were made to me about” watching my back “and “sleeping well at night.”  When we finished the tour I sought advise from the base Chaplain for assistance since I didn’t know what else to do.  The Chaplin contacted my ship and scheduled a meeting with legal.  My superiors later gave me two options to resolve the situation.  Either to stick it out on board or to finish my remaining service on base until my discharge papers were completed.  I would have completed my full service if this disturbing situation did not happen.”

Documentation

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

Applicant’s DD Form 214
Ltr from Applicant dtd 050208
Applicant’s DD Form 293 dtd 050208

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	930129 - 930411	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  930412		Date of Discharge:  951106

Length of Service (years, months, days):

	Active:    02  06  25
	Inactive:  00  00  00

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  61

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)		Behavior:  4.00 (2)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, NUC, MUC, SASM

Days of Unauthorized Absence:  None

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

HONORABLE/HOMOSEXUAL ACT, authority: MILPERSMAN, Article 3630400.

Chronological Listing of Significant Service Events:

951002:	Fleet Mental Unit:  Applicant gave consent for evaluation.  Applicant admitted that he was in a “satisfying” relationship with a member of the same sex.  Applicant stated that he “came out” in the civilian community in March 1994.  Applicant also disclosed his sexual orientation to some members on the ship.  [Extracted from Commanding Officer’s message dated 951006.]

951003:	Applicant notified of intended recommendation for by reason of homosexuality as evidenced by Applicant's statement that he admitted to being a homosexual.  [Extracted from Commanding Officer’s message dated 951006.]

951003:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.  [Extracted from Commanding Officer’s message dated 951006.]

951006:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of homosexuality as evidenced by Applicant's statement that he had engaged in homosexual acts.  Commanding Officer’s comments (verbatim):  OS3 A_ (Applicant) freely admitted that he was a homosexual and involved in a homosexual relationship.  I recommend expeditious separation from the naval service.  However, his overall performance has been excellent evidenced by no NJP punishments and 3.8 performance average.  I recommend a discharge under honorable conditions.

951026:	BUPERS directed the Applicant's discharge with characterization based on enlisted performance evaluations by reason of homosexual conduct.

*Complete discharge package not contained in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was honorably discharged on 19951106 by reason of homosexuality – homosexual act (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.  There is credible evidence in the record that the Applicant engaged in a homosexual act or acts.  Mandatory processing for separation is required for sailors who engage in such behavior.  The Board found no indication in the record that the Applicant was inequitably or improperly discharged.  The Applicant’s allegation, that he was a victim of rumors, does not refute the presumption of regularity in this case.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason Separation would be inappropriate. 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.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630400, SEPARATION OF ENLISTED PERSONNEL 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