ex-AN, USN

Current Discharge and Applicant’s Request

Application Received: 20080730
Characterization of Service Received: 
Narrative Reason for Discharge: 
Authority for Discharge: MILPERSMAN 

Applicant’s Request: Characterization change to: 
		      Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20021209 - 20030728  		Active:   

Period of Service Under Review:
Date of Enlistment: 20030729	Period of Enlistment:  Years   Extension	Date of Discharge: 20061121
Length of Service:  Years     Months   22 Days	Education Level: 	Age at Enlistment: 	AFQT: 38
Highest Rank/Rate: 	AN	Evaluation Marks: Performance:	NFIR	Behavior: NFIR	OTA: NFIR
Awards and Decorations (per DD 214):	NDSM GWOTEM GWOTSM SSDR

NJP:  
- 20031208:  Article 81 (Conspiracy)
                     Article 86 (Absence without leave-missed muster)
                     Article 107 (False official statement)
                     Awarded:  CCU FOR 30 DAYS    Suspended:  

- 20061114:  Article 125 (Sodomy)
                     Article 134 (Indecent acts with another)
                     Awarded:     Suspended:   

SCM:      SPCM:      CC:  

Retention Warnings: 1
- 20031209:  For violation of the UCMJ, Article 81-Conspiracy; Article 86-Absence without leave; and Article 107-
                     False official statement, as evidenced by your appearance at CO’s NJP of 20031208. 

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

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

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

Applicant’s Issues

1.  Request reconsideration of discharge code.
2.  Advised his discharge would be upgraded after six months.
3.  Advised that based on his work performance and length of service he would get a general if he admitted to the allegations.

Decision

Date:  20081121               	Location:  Washington D.C.	Representation:  

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

Discussion

:  The Applicant is requesting a reconsideration of his discharge code and contends he was told by his counsel the characterization would be upgraded automatically within six months of his discharge from service.  either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning Automatic Upgrades and s, for additional information regarding .

Issue 3: ()  .  The Applicant contends his discharge should be upgraded because he was told he would get a general discharge based on his work performance and his length of service.  He also states he was not allowed to leave a Naval Criminal Investigative Service (NCIS) investigation until he provided a statement.  The Applicant feels his leadership failed him in the administrative discharge process.  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.  The Applicant’s record of service reflects he had one retention warning and two NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 81 (Conspiracy); Article 86 (UA); Article 107 (False official statement); Article 125 (Sodomy); and Article 134 (Indecent acts with another).  Additionally, the record contains an interview with the Applicant from 1 November 2006, conducted by a NCIS agent, wherein he admitted to committing the act of sodomy on another male Petty Officer in a berthing area aboard a naval vessel.  These violations are serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not refer the Applicant to a court-martial but opted instead for an administrative discharge. 

Based on the aforementioned misconduct, on 8 November 2006, the Applicant was notified of administrative separation processing for misconduct due to homosexual conduct, commission of a serious offense and pattern of misconduct with the least favorable characterization of service being an “Under Other Than Honorable Conditions” discharge (OTH).  A review of the documentation contained in the Applicant’s record indicates he waived all of his rights except for copies of documents forwarded to the separation authority.  The commanding officer’s recommendation to the separation authority of 15 November 2006 reflects he recommended separation of the Applicant with an “OTH”.  

The Applicant’s contention he was told by his legal counsel he would get a “General (Under Honorable Conditions)” discharge based on his work performance and length of service is refuted by the evidence of record which reflects he was notified the least favorable characterization would be an “OTH”.  Additionally, the commanding officer’s recommendation of an “OTH” discharge is consistent with current policy as outlined in MILPERSMAN 1910-148, which indicates an “OTH” is appropriate characterization of discharge for a person separated for homosexual acts with aggravating circumstances, such as aboard a naval vessel or another location subject to Naval control, which adversely affects the good order and discipline of a command.  The Applicant’s own admission to fondling and performing oral sex on another serviceman in a berthing area, while aboard a Naval vessel, is evidence of aggravating circumstances that warranted an “OTH”.  Furthermore, there is no evidence in the record or presented by the Applicant to support his allegations of wrongdoing by the command or the investigator.  

In light of the seriousness of the offenses committed by the Applicant, the adverse impact his behavior had on good order and discipline in his unit, and the lack of mitigating factors, the Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

Pertinent Regulation/Law

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.  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.

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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