ex-IT2, USN
ND07-00840 

Current Discharge and Applicant’s Request

Application Received:  20070605 	Characterization Received:  
Narrative Reason:  HOMOSEXUAL MARRIAGE 	Authority:  MILPERSMAN 1910-148

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Did not enter into a homosexual marriage
			2. Improperly advised to waive administrative discharge board
			3. Characterization not warranted by overall service record
			4. Post-service conduct

Decision

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

Date:  20071220		Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ().  The Applicant claims that she lied about having a homosexual marriage because she did not want to be in California and desired to completely leave the military, so she “conjured up a story about…being in a homosexual relationship.”  Separation processing is mandatory if the commanding officer believes, based on credible information, that the service member has committed homosexual conduct.  Homosexual conduct exists if a service member has, among other things, married or attempted to marry a person of the same biological sex.  The Applicant voluntarily claimed to her superiors that she had entered into a homosexual marriage, as an explanation for her repeated unauthorized absences from her place of duty and her false official statement regarding her whereabouts.  Under the circumstances of the case, the Board found no reason to conclude that the commanding officer erred in his assessment of the facts as reported to him.  The Board also found no reason to conclude, based on the Applicant’s current claim that she fabricated the story, that the reason for discharge was not supported by the preponderance of the evidence.  The Applicant essentially asks the Board to believe her now and give her what she wants--an honorable discharge--based on the fact that she previously lied to get what she wanted -- discharged from the Navy.  The Board did not find her current claim credible.

Issue 2 ().  The Applicant implies that the command master-at-arms advised her that she would receive an other than honorable characterization of service if she elected an administrative discharge board, but would receive a general (under honorable conditions characterization if she waived the board.  The Board did not find any evidence to indicate that the Applicant was misled, or pressured, into waiving her administrative discharge board against her will.  Taking the Applicant’s claim at face value, the Board found that whatever opinion the command master-at-arms may have expressed to her regarding the outcome of her case, the record clearly demonstrates that the Applicant was properly notified of her right to an administrative discharge board and her right to counsel to assist her in making her election.  That she may now regret the consequences of her actual election does not render her discharge improper or inequitable.

Issue 3 ().  The Applicant cites her good service, argues that it was unfair to have her recommendation for advancement and frocking to the next rank revoked, and also receive a characterization of service as general (under honorable conditions) for the same offense of unauthorized absence, and claims to have served honorable as evidenced by receiving a Good Conduct Medal at discharge.   An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  The Board noted, as did her Commanding Officer, the Applicant’s positive performance of duty prior to the events leading to her discharge and that the record indicated an effective date of the Applicant’s Good Conduct Medal prior to the these events.  The Board also noted that the Applicant had failed to go to her appointed place of duty in violation of Article 86 of the Uniform Code of Military Justice (UCMJ) on at least 2 occasions prior to her admitting to having entered into a homosexual marriage, had lied to her superiors about her whereabouts in violation of Article 107, and then entered an unauthorized absence status in another violation of Article 86.  The Commanding Officer’s determination that such misconduct adversely reflected on the Applicant’s ability to function as a Second Class Petty Officer was consistent with naval standards, and a separate decision from the Separation Authority’s assessment of the character of the Applicant’s overall service.  The Commanding Officer’s apparently decided to show leniency and not take formal disciplinary action against the Applicant for her misconduct did not preclude the Separation Authority from considering it in determining the appropriate characterization of service.    

Issue 4 ().  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19990820 - 20000716  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20000717		Years Contracted:  ; Extension:  	Date of Discharge:  20030815
Length of Service:  03  Yrs  00  Mths  29  Dys			Lost Time:  Days UA:  05  Days Confined:  
Education Level:  		Age at Enlistment:  		AFQT:  61		Highest Rank/Rate:  IT2
Evaluation marks (# of occasions):	Performance:  3.7(3)	Behavior:  4.0(3)	 	OTA:  3.55 
Awards and Decorations (per DD 214):  GCM, NDSM, PISTOL MM, FLAGLTRCOM

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20030520:	0730, Applicant failed to go at time prescribed to appointed place of duty.  @0800, Applicant left phone message indicating she was running late.  @0830, unit attempted unsuccessfully to locate Applicant in her assigned barracks room.  @0900, Leading Petty Officer (LPO) called Applicant’s cell phone and left message.  @0945, Applicant called LPO and claimed to be at Medical.  @1030, Applicant arrived at place of duty.  Admitted to LPO that she lied about her whereabouts, that she had driven to Los Angeles the previous evening to be with her family and had gotten a late start that morning.  Applicant told LPO that she was married to a woman and had 2 children.  LPO informed SK Chief Petty Officer (SKC).  LPO and SKC attempted to get advice from unit JAG; eventually advised by unknown JAG to keep information confidential. 

20030521:	0730, Applicant failed to go at time prescribed to appointed place of duty.  @0800, Applicant arrived at place of duty.  Informed LPO that she had not wanted to attend quarters and “face chain of command;” had gone to the NEX instead.   LPO forwarded formal counseling chit for UA to SKC.  IT Chief Petty Officer (ITC), in presence of SKC and LPO, counseled Applicant on tardiness 2 days in a row.  Applicant informed ITC of her 2 children in Los Angeles and marriage to another woman.  ITC, upon advice from unit JAG, forwarded information to Commanding Officer via Division Officer.

20030527:	Applicant provided voluntary sworn statement acknowledging that she was “engaged in a lawful commitment with another female,” that she was “fully aware of the US Navy’s policy on same sex marriage,” that she was “not under no type of duress,” that she was not “making this up to get out of the Navy,” and that the reason she provided this information was “because I was traveling back and forth to Los Angeles…I was late for work and my Chain of Command started to ask me as to my reason for my U/A…I informed them that I was married to another woman.

Discharge Process

Date Notified:					20030602
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20030613
Rights Elected at Notification:
	Consult with Counsel			UNABLE TO DETERMINE
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (20030623)
	Administrative Board			

Commanding Officer Recommendation (date):	 (20030625)
Separation Authority (date):	COMNAVPERSCOM (20030804)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20030815

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    	Other Documentation (Describe) 

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 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, Article 107, False official statements.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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