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

FOR OFFICIAL USE ONLY

  ex-MS3, USN
Docket No. ND05-00827

Applicant’s Request

The application for discharge review was received on 20050413.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

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, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 4 to 1 that the character of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of homosexuality - homosexual acts.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“R/R Change from General to Honorable based upon my seven years of continuous service without any incident until my processing out related issue.  I should be eligible for educational benefits (GI Bill) for I paid my dues to it.  Thank you!”

Applicant’s Remarks:  “I can’t afford an attorney.  I am trying to return to school and need these benefits to do so.”

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)	19920702 - 19930324		COG
	Active:   USN 			19930325 - 19971001		HON

Period of Service Under Review:

Date of Enlistment:  19971002		Date of Discharge:  20000929

Length of Service (years, months, days):

	Active:    02  11  28  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  5 days
	Confinement:		  None

Age at Entry:  23

Years Contracted:  3

Education Level:  12				AFQT:  57

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Battle “E” Ribbon, Sea Service Deployment Ribbon (2), Good Conduct Medal (2), Meritorious Unit Commendation Ribbon, Armed Forces Service Medal, NATO Medal, National Defense Service Medal.

* Not Available

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

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

Chronological Listing of Significant Service Events: 

971002:	Reenlisted this date for a term of 3 years.

000704:	Applicant arrested by Escambia County Sheriff’s Office, Escambia County, Florida for allegedly committing the offenses of sexual battery, false imprisonment, aggravated battery, and battery.

000705:	Applicant’s Voluntary Statement made to LCDR P_ J. O_, USN and LTJG M_ M_, USN, admitting his homosexuality.

000711:	Applicant notified of intended recommendation for separation by reason of homosexual conduct as evidenced by Applicant's statement that he admitted to being a homosexual.  Applicant advised, that if separation is approved, the characterization of service may be general (under honorable conditions).

000718:	Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000726:	Commanding Officer, Naval Air Station, Whiting Field, recommended discharge with type warranted by service record by reason of homosexual conduct.  Commanding Officers comments:  “MS3 D_ (Applicant) was arrested for domestic violence based on a complaint that his civilian roommate filed with the Escambia County Sheriff’s Officer.  Upon his release, he stated to two of my officers that he was a homosexual.  Although he is currently charged with some serious civilian offenses, a strong possibility exists that the charges may be reduced or even dropped.  In view of this and to minimize the impact on morale and discipline, I recommend that MS3 D_ be expeditiously separated from the naval service with the type discharge warranted by his service record.”

000728:	CNMPC directed the Applicant’s reprocessing for separation by reason of misconduct due to commission of a serious offense and member’s statement admitting homosexual acts.  Applicant should be processed with a least favorable characterization of service as other than honorable.

000814:	Applicant notified of intended recommendation for separation by reason of misconduct due to the commission of a serious offense and by reason of homosexual conduct as evidenced by Applicant's statement that he admitted to being a homosexual.  Applicant advised, that if separation is approved, the characterization of service may be under other than honorable conditions.

000822:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

000918:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had not committed misconduct by reason of commission of a serious offense but that the Applicant had committed homosexual conduct.  The Board recommended by unanimous vote that separation was warranted, and recommended discharge with a general (under honorable conditions).

000922:	Commanding Officer, Naval Air Station, Whiting Field, recommended discharge with a general (under honorable conditions) by reason of homosexual conduct.

000926:	CNMPC directed the Applicant's discharge with a general (under honorable conditions) by reason of homosexual conduct.

001011:	Commanding Officer, Naval Air Station, Whiting Field, notified CNMPC that the Applicant was discharged on 20000929 with a general (under honorable conditions) discharge.

The Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000929 by reason of homosexuality - homosexual acts with a service characterization of general (under honorable conditions) (A).  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant contends that he served the United States well and he is entitled to an upgrade.  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 for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by a five day unauthorized absence.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 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