FOR
ex-SR, USN
ND06-01147

Current Discharge and Applicant’s Request:

Application Received:  				20060829
Characterization of Service:				
Narrative Reason for Separation:	BY REASON OF MISCONDUCT DUE TO A COMMISSION OF A SERIOUS OFFENSE AND HOMOSEXUAL CONDUCT
Discharge Authority:				MILPERSMAN 3630605 AND 3630400
Last Duty Assignment/Command at Discharge:	USS DOYLE (FFG-39)

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
Representation:  					
Issues (as summarized by NDRB):			1.  Discharge is inequitable because of hard work.
						2.  Harassed by shipmates because of sexual preference, command did 							not protect the Applicant.
						3.  UA a result of being robbed while on liberty.

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  .

Date of Decision:					20070802
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Discussion

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety in the discharge process.  The Board voted 5-0 that the character of the discharge shall change to General (under honorable conditions) and by a vote of 3-2 that the narrative reason shall change to Secretarial Authority  

Any discharge which involves homosexual conduct requires BUPERS separation authorization.  The Commander of USS DOYLE (FFG-39) chose to discharge the Applicant locally, without BUPERS authorization.  The least favorable characterization of service authorized for local separations is general (under honorable conditions) if warranted by the service record.  In the Applicant’s case his service record was marred by nonjudicial punishment for violations of the UCMJ Articles 86 (unauthorized absence), Article 92 (failure to obey and order), Article 134 (drunkenness), and Article 107 (false official statement).  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 (under 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 Board determined by unanimous vote, that relief is warranted based on the improper administrative discharge process.   The characterization of service shall be changed to “General (under honorable conditions)”.  Furthermore, based upon the improper processing the narrative reason for discharge shall change to “Secretarial Authority”.  Relief granted.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				199607222 - 19961002 
Active:   					NONE
Period of Service Under Review:
Date of Enlistment:  				19961003
Years Contracted:  				
Date of Discharge:				19970312
Length of Service:				00 Yrs 05 Mos 10 Days
Time Lost During This Period:			1
Days Unauthorized Absence:			1
Days Confinement:				NONE

Education Level:  				
Age at this Enlistment:  				
AFQT:  						32
Highest Rate/Rank:				SR

Performance Evaluation Averages (number of marks):
Performance:					N/A
Behavior:					N/A
OTA:						N/A

Awards and Decorations (as listed on the DD Form 214):  NONE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19970211:	NJP for violations of UCMJ:
	Article 86:  Absence from unit on 0745, 19970202 until 1030, 19970203 (1 day, surrendered).
	Article 92:  Failure to obey other lawful order issued by Command Duty Officer to return to the ship on 19970202.
	Article 134:  Drunkenness (incapacitation for duty) on 19970203.
	Article 107:  On or about 1825, 19970203 with intent to deceive, signed an official record, to wit: OPNAV 5527/2 (voluntary statement form), and was known to be false.
	Award:  Forfeiture of $400.00 for 2 months, restriction and extra duty for 30 days.
	No indication of appeal in the record.

19970212:	Military Suspect’s acknowledgement and waiver of rights.  Applicant notified suspected of violation of UCMJ, Articles 125 (sodomy) and 134.

19970213:	Memorandum for Record from Legal Officer to Commanding Officer USS DOYLE (FFG 39) regarding applicant’s statement to Command Master Chief that he is a homosexual.

19970218:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to the commission of a serious offense, sexual behavior which deviates from socially acceptable standards of morality and decency to wit: sodomy, and by reason of your statement that you are homosexual or bisexual.

19970218:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights. 

19970225:	Commanding Officer, USS DOYLE (FFG-39), recommended to BUPERS the Applicant’s discharge with a characterization of service as other than honorable by reason of misconduct due to the commission of a serious offense, sexual behavior which deviates from socially acceptable standards of morality and decency to wit: sodomy, and homosexual conduct-statement of homosexual or bisexual preference.  Commanding Officer’s comments:  “SR R_ (Applicant) is unsuitable for military service.  In addition to the offenses addressed, a shoulder injury that he sustained before entry into naval service (as admitted by member to legal officer) has made him useless to this command.  He has contributed nothing to the command and has no potential for future naval service.  SR R_ voluntarily and without solicitation stated that he is a homosexual, and when interviewed regarding this statement, he admitted to committing a homosexual act or acts in the form of sodomy while on leave subsequent to basic training.  SR R_ has stated that he is willing to be separated and that he feels as though he does not belong in the Navy.  Separation is recommended with a characterization of other than honorable due to the offenses of 02-02FEB97 as well as the serious offense of sodomy committed while on active duty.”

19970312:	Applicant discharged by reason of misconduct due to a commission of a serious offense and homosexual conduct with a service characterization of other than honorable.

19970326:  	Commanding Officer, USS DOYLE (FFG 39), forwarded the administrative discharge package to Chief of Naval Personnel.

19970508:	BUPERS message to USS DOYLE, stating that BUPERS is the separation authority for all cases involving homosexual conduct, and requested Administrative separation package for the Applicant.

19970828:	BUPERS message to USS DOYLE, requesting Administrative separation package for Applicant be sent to BUPERS.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					19970218
Reason for Discharge	 due to:  
	Sexual behavior which deviates from socially acceptable standards
	Statement that you are a homosexual or bisexual.
Least Favorable Characterization:			UNDER OTHER THAN HONORABLE
Date Applicant Responded to Notification:		19970218
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			
GCMCA Review				

Recommendation of Commanding Officer (date):	 (19970225)
Separation Authority (date):	NOT FOUND IN SERVICE RECORD
Narrative reason directed:				
Characterization directed:	
Date Applicant Discharged:			19970312

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		2
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				3

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C) Change 14, effective 03 October 1996 until 
11 December 1997, 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  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 an order), 107 (false official statement), 125 (sodomy), and 134 (indecent acts).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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”.

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/ Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/ RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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