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

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND06-00951

Applicant’s Request

The application for discharge review was received on 20060707.  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 20070614.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of a homosexual act.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Propriety – Basis for discharge

Equity – Quality of service

Equity – Post service

Documentation

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

Applicant’s DD Form 214 (Member 4)
One page from the Applicant’s Service Record
Applicant’s Statement, (no signature and no date) (2 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020815 - 20030701	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030702		Date of Discharge:  20050506

Length of Service (years, months, days):

	Active:    01  10  05  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4 

Education Level:  12				AFQT:  84

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3) 		Behavior:  2.0 (3)			OTA:  2.83

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Coast Guard Special Operations Service Ribbon

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

UNDER OTHER THAN HONORABLE CONDITIONS/HOMOSEXUAL ACT, authority:  MILPERSMAN, Article 1910-148 (previously 3630400).

Chronological Listing of Significant Service Events: 

040504:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
Award:  Forfeiture of $621.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 months).  No indication of appeal in the record.

050104:	Report and Disposition of Offenses.  Attachment to NAVPERS 1626/7 ICO SN B_, E-A_/SSN# deleted.
Charge I: violation of UCMJ Article 92: Failure to obey order or regulation.  Specification:  In that, SN E_ A_B_, U.S. Navy, USS REUBEN JAMES FFG 57, did on active duty, on Naval Station Pearl Harbor Hawaii, in the month of December 2004, fail to obey a lawful general order and regulation, to wit: REUBEN JAMES barracks instruction by wrongfully drinking an alcoholic beverage in room 301.
	Charge II: violation of UCMJ Article 107: False official statements.
	Specification: In that, SN E_ A_B_, U.S. Navy, USS REUBEN JAMES FFG 57, did on active duty, on board USS REUBEN JAMES FFG 57, on or about 03 January 2005, with intent to deceive, make to MA1 M_, CMAA an official verbal and written statement, to wit: The incident that occurred concerning his alleged rape on 17 December 2004, which was totally false, and was then known by the said SA B_ to be so false.
	Charge III: violation of UCMJ Article 128: Assault.  Specification: In that, SN E_ A_B_, U.S. Navy, USS REUBEN JAMES FFG 57, did on active duty, in the state of Hawaii, on or about 22-24 December 2004, assault another military member by holding him down while others struck him with a closed fist.  
	Charge IV: violation of UCMJ Article 134.90: Indecent acts with another.
	Specification:  In that, SN E_ A_B_, U.S. Navy, USS REUBEN JAMES FFG 57, did on active duty, on Naval Station Pearl Harbor Hawaii, on or about 17 December 2004, wrongfully commit an indecent act with CSSN L_F. D_ to wit: engage in consensual sexual activity involving oral and anal sex, which was prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Not dated:	Preliminary Inquiry Report:  XOI Comments: “Admitted guilt to 3 of 4 charges.  Plead not guilty to charge III (Assault) stating he tried to pull the sailor being assaulted away from T_ and T_.  Since he carried T_ & T_ to the bar, preponderance of evidence indicates he’s guilty.  Recommend: RIR, ½ mos pay x 2 mos, process for immediate adsep.” 

050118:	NJP.  Violation of UCMJ Article 92: failure to obey order or regulation.  
	Violation of UCMJ Article 107: false official statements.
	Violation of UCMJ Article 128: assault.
Award:  Forfeiture of $722.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

050124:	Commanding Officer, USS REUBEN JAMES (FFG 57) set aside UCMJ Article 134.90.  Commanding Officer’s comments: “At Non-judicial Punishment (NJP) held on 18 January 2005 you were found guilty of UCMJ Articles 92 (Failure to obey order or regulation), 107 (false official statements), 128 (Assault), and 134.90 (Indecent acts with another).  After further examination, I have decided to set aside the finding that you were guilty of violating UCMJ Article 134.90.  All other findings from NJP and punishment imposed remain in effect”.

050317:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and homosexual conduct by member engaging in, attempting to engage in, or soliciting another to engage in a homosexual act (s).  Applicant advised, that if separation is approved, the characterization of service may be under other than honorable conditions.

050317:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

050325:	Commanding Officer, USS REUBEN JAMES (FFG 57) recommended administrative separation by reason of homosexual conduct/commission of a serious offense.  Commanding Officer’s comments:  “I strongly recommend that Seaman B_ be separated from the Naval Service.  His overall service, however, does not deserve characterization as Other Than Honorable.”

050420:	CNPC directed the Applicant's discharge under other than honorable conditions by reason of homosexual act.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050506 by reason of homosexuality - homosexual acts (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

Propriety – Basis for discharge:  The Applicant states that he is not or was never a homosexual and that his CO dropped the findings that he had committed a homosexual act.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  On 20050104, a Report and Disposition of Offenses accused the Applicant of committing a violation of UCMJ Article 134.90 (indecent acts with another) on 20041217.  The specification of this violation stated that the Applicant had wrongfully committed an indecent act with another male Sailor.  On 20050118, the Applicant was awarded nonjudicial punishment for violations of UCMJ Articles 92, 107, and 128.  The violation of UCMJ Article 134 was not adjudicated.  The Applicant provided a copy of a letter to the NDRB, dated 20050124, wherein the Commanding Officer stated that he had decided to “set aside the finding that you were guilty of violating UCMJ Article 134.90.”   On 20050325, the Applicant’s Commanding Officer recommended to the Commander, Naval Personnel Command that the Applicant be separated for homosexual conduct and commission of a serious offense.  Per the Naval Military Personnel Manual, separation processing is mandatory if the Commanding Officer believes, based on credible information, that the servicemember has committed homosexual conduct. Credible information includes an admission that a servicemember has engaged in homosexual acts.  In his written statement to the NDRB, the Applicant stated that he told investigators his version of the events that occurred on 20041217, and that it “sounded” homosexual.  On 20050420, the Separation Authority, the Commander, Navy Personnel Command, directed that the Applicant be discharged, having determined that the commission of a homosexual act most clearly described the reason for discharge.  There is credible evidence in the record to support the conclusion that the Applicant committed a homosexual act, regardless of whether or not that act constituted an indecent act with another in violation of Article 134; therefore, the Board determined that the Applicant’s discharge was proper and equitable.  Relief denied.     

Equity – Quality of service:  The Applicant contends that he did his very best except for some irresponsible and immature behavior outside of the workplace.

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.  An under other than honorable conditions  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 92, 107, and 128 of the UCMJ.  In addition, the Applicant violated UCMJ Article 134 but this misconduct was not adjudicated.  Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  Violations of UCMJ Articles 92, 107, 128 and 134 are all considered serious offenses, for which a punitive discharge is authorized if adjudged by a special or general court martial.  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.

Equity – Post service:  The Applicant states that he has a steady job and that he attends college.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received by  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 additional evidence related to this 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 11, effective 
29 April 2005 until Present, Article 1910-148, SEPARATION BY REASON OF HOMOSEXUAL CONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 92 (failure to obey order or regulation), 107 (false official statement), 128 (assault consummated by battery) and 134 (indecent acts with another).

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

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

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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
 
.