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

FOR OFFICIAL USE ONLY

  ex-NC2, USN
Docket No. ND05-00811

Applicant’s Request

The application for discharge review was received on 20050406.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan Area.  The Applicant listed a civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an 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 change.  The discharge shall become:  HONORABLE/HOMOSEXUAL ADMISSION, authority:  MILPERSMAN, Article 1910-148.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant and counsel/representative (civilian counsel):

“Mr. S_’s (Applicant) military service met and far exceeded the standards for receiving an Honorable discharge characterization—indeed any other discharge characterization is clearly inappropriate.  Mr. S_’s General (under honorable conditions) discharge characterization is inequitable and unwarranted given his stellar military record.  The positive aspects of Mr. S_’s naval record far outweigh the single NJP he received during nearly fifteen years of service.”

Please see attached brief of counsel for greater details.

Documentation

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

Brief of counsel in support of application for upgrade of discharge characterization (19 pages)
Applicant’s DD Form 214
Applicant’s enlisted performance evaluation reports (20 pages)
Affidavit of Applicant, dated March 29, 2005 (4 pages)
Applicant’s statement, dated February 22, 2002 (2 pages)
Administrative remark, dated August 10, 2001
Court memorandum NAVPERS 1070/607
Sailor/Marine American Council on Education registry transcript (8 pages)
Conditional waiver request, dated March 14, 2002
Conditional waiver in lieu of electing an Administrative Board is accepted and approved, dated March 14, 2002
Commanding Officer’s recommendation for administrative separation, dated March 14, 2002 (2 pages)
Fifteen pages from Applicant’s service record
Letter from House of Representative to the Presiding Officer, Naval Discharge Review Board, dated March 29, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	870616 - 871025	COG
	Active:    USN			871026 - 920120	HON
		    USN		920121 - 950721	HON
		    USN		950722 - 001029	HON

Period of Service Under Review:

Date of Enlistment:  001030		Date of Discharge:  020419

Length of Service (years, months, days):

	Active:    01  05  20
	Inactive:  None

Age at Entry:  32			Years Contracted:  6

Education Level:  12			AFQT:  66

Highest Rate:  NC1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)		Behavior:  3.00 (1)		OTA:  3.43

Military Decorations:  Navy and Marine Corps Achievement Medal (3)

Unit/Campaign/Service Awards:  Sea Service Ribbon (4), COMCARGRU ONE Letter of Commendation, National Defense Service Medal, Southwest Asia Service Medal, Navy Unit Commendation, Navy Expert Pistol Medal, Navy Battle “E” Ribbon, Kuwait Liberation Medal, Navy Good Conduct Award (4), Liberation of Kuwait Medal, Meritorious Unit Commendation Citation, Navy Expert Rifle Medal

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.

Chronological Listing of Significant Service Events:

001030:	Applicant reenlisted for 6 years.

020222:	Applicant’s acknowledgment and waiver of rights.  Applicant admitted that he is homosexual.

020311:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
	Award:  Forfeiture of $1329.15 per month for 2 months, reduction to E-5.  No indication in the record of appeal.

020312:	Applicant’s Administrative Separation Processing Notice [Extracted from conditional waiver request of 020314].

020313:	Applicant’s acknowledgment and waiver of rights.  Applicant referred to statement of 020222.

020314:	Applicant submitted a conditional waiver request.  Applicant understood he was being discharged by reason of homosexual statement and such discharge could result in a general (under honorable conditions).  After consulting with counsel, Applicant elected to request an honorable discharge in lieu of an administrative discharge board and agreed that, if granted, he would waive his administrative discharge board.  Applicant further indicated he understood that if the request was disapproved, he would have the right to elect an administrative discharge board.  [Extracted from supporting documents submitted by the Applicant.]

020314:	Commanding Officer, USS Bridge (AOE 10), approved the conditional waiver in lieu of an administrative discharge board.  [Extracted from supporting documents submitted by the Applicant.]

020314:	Commanding Officer, USS Bridge (AOE 10) recommended discharge with an honorable characterization by reason of homosexuality as evidenced by his statement that he is a homosexual or bisexual which creates a rebuttable presumption the he engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  Commanding Officer’s comments (verbatim):  “NC2 S_ (Applicant) is being processed for homosexual conduct as evidenced by his statement, therefore, he cannot abide by the Navy’s rules and regulations and separation is appropriate.  I highly recommend that he be separated with an Honorable Discharge per the provisions of MILPERSMAN 1910-600.”

020408:	Applicant notified of intended recommendation for by reason of homosexual conduct as evidenced by Applicant's statement that he is a homosexual or bisexual, or words to that effect, which creates a rebuttable presumption the he engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  Applicant advised, that if separation is approved, the least favorable characterization of service possible is General Under Honorable Conditions.

020408:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020409:	CNPC directed the Applicant's discharge by reason of homosexual admission with a general (under honorable conditions).  

020410:	Commanding Officer, USS Bridge (AOE 10) recommended discharge with a general (under honorable conditions) by reason of homosexuality as evidenced by his statement that he is a homosexual or bisexual which creates a rebuttable presumption the he engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  Commanding Officer’s comments (verbatim):  “NC2 S_ (Applicant) is being processed for homosexual conduct as evidenced by his statement, therefore, he cannot abide by the Navy’s rules and regulations and separation is appropriate.  I highly recommend that he be separated with a General (Under Honorable Conditions) Discharge per the provisions of MILPERSMAN 1910-600.”

020419:	DD-214:  Applicant discharged by reason of homosexual admission with a general (under honorable conditions).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020419 with a general (under honorable conditions) by reason of homosexuality - homosexual admission (A).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was inequitable (B).

The evidence of record indicates that the Applicant admitted to being homosexual in a signed statement to command investigators on 20020222.  Subsequent to that admission, the Applicant was awarded nonjudicial punishment for a violation of UCMJ Article 92, failure to obey an order or regulation.  The Applicant was notified of intended recommendation for separation by reason of homosexual admission with a least favorable characterization of service of general (under honorable conditions) on 20020312.  On 20020314, the Applicant conditionally agreed to waive his administrative discharge board in exchange for an honorable characterization of his service.  On the same day, the Commanding Officer, USS Bridge (AOE 10), accepted the Applicant’s request and recommended to Commander Naval Personnel Center that the Applicant be discharged by reason of homosexual admission with an Honorable discharge.  The Commanding Officer included in his recommendation as an enclosure the Applicant’s conditional waiver request.  On 20020408, the Applicant was again notified of intended recommendation for separation by reason of homosexual admission with a least favorable characterization of service of general (under honorable conditions).  The record is unclear as to why the Applicant was notified twice concerning his rights.  On 20020409, Commander, Naval Personnel Command, referencing the Commanding Officer’s letter of 20020314, directed the Applicant’s discharge by reason of homosexual admission with a general (under honorable conditions).  On 20020410, the Commanding Officer, USS Bridge (AOE 10), recommended to Commander, Naval Personnel Command, that the Applicant be discharged by reason of homosexual admission with a general (under honorable conditions).  This recommendation by the Commanding Officer contained no mention of the Applicant’s conditional waiver request.  On 20020419, the Applicant was discharged by reason of homosexual admission with a general (under honorable conditions).

After a thorough review of the records and considering the above synopsis of the case, the NDRB unanimously concluded that relief must be granted.  The record contains evidence to suggest that the Applicant was not afforded appropriate due process.  The Applicant’s conditional waiver request makes clear his desire to forego an administrative discharge board only on the condition that he receive an honorable discharge.  The evidence of record further shows that this condition waiver was accepted by the Commanding Officer, USS Bridge (AOE 10).  Although the Commander, Naval Personnel Command, was not bound by the decision of the Commanding Officer to accept the conditional waiver request, due process would require that the Applicant receive an opportunity to elect an administrative discharge board if his conditional waiver request was not approved.  The Board concluded that based on the evidence of record, Commander, Naval Personnel Command, disapproved the conditional waiver and elected to discharge the Applicant with a general (under honorable conditions) as opposed to directing the Applicant’s re-notification and election of rights.  Based upon the available evidence, the Board was convinced that had the Applicant been apprised of the rejection of his conditional waiver request, he would have chosen to elect an administrative discharge board.  As such, by unanimous vote, the NDRB concluded that such action constituted an inequity in the Applicant’s characterization of service and voted to change the Applicant’s characterization of service to Honorable.  Relief granted.

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 30, dated 
7 Nov 00, effective 24 Aug 00 until Present, Article 1910-148 (previously 3630400), Separation by Reason of Homosexual Admission.

B.  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