ex-SN, USN 

Current Discharge and Applicant’s Request

Application Received:  20081125
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN  HOMOSEXUAL ACT

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20031112 - 20040105  	Active:	

Period of Service Under Review:
Date of Enlistment:  20040106	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060825	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   20 Day(s)
Education Level:  	AFQT:  54
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	    

Periods of UA/CONF:  

NJP:  
- 20060216:	Article 134 (Indecent acts with another)
	Awarded:     Suspended:  

SCM:     SPCM:     CC:     Retention Warning Counseling:  

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:  

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

Applicant’s Issues

1.  Would like to join the reserves but unable to due to Other than honorable.
2.  Discharge extremely inadequate and inequitable based on one isolated event that was not investigated.
3.  “Placed me on restriction over hearsay”.

Date:  20090305		Location:  Washington D.C.	Representation:  

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

Discussion

:  The Applicant contends she would like to reenlist in the reserves but is unable to do so because of her other than honorable discharge.   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 s, for additional information regarding .

:  ()  .  The Applicant contends her discharge was extremely inadequate and inequitable because it was based on one isolated event that was not investigated.  The Applicant also contends she was made the subject of lies or purposely set up.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization and/or reason for discharge if such a change is warranted.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of NJP on 16 February 2006 for violation of the Uniform Code of Military Justice (UCMJ):  Article 134 (Indecent acts with another –cunnilingus acts); thus substantiating the homosexual misconduct for which she was subsequently separated.  

Pursuant to MILPERSMAN 1910-148 – separation processing is mandatory if the commanding officer believes, based on credible evidence, the service member has committed homosexual conduct.  As per the Administrative Separation Processing Notice of 3 March 2006, the Applicant was notified of separation processing by reason of homosexual conduct and waived all of her rights except for copies of documents to be forwarded to the separation authority.  The Applicant was subsequently separated based on homosexual conduct and given an “Under Other Than Honorable Conditions” characterization as directed by COMNAVPERSCOM message of 15 August 2006.  

The Board also determined the Applicant’s contention the command failed to investigate the charge was without merit.  Pursuant to MILPERSMAN 1910-148, an investigation is not mandatory unless the commanding officer questions the credibility of the evidence. This is clearly a subject matter wherein the commanding officer has been granted the authority to decide whether an investigation should be conducted and not the individual who is being processed for separation.  The evidence of record, as previously discussed reflects the Applicant was punished at NJP for indecent acts with another female.  There is no evidence in the record or presented by the Applicant to prove the command acted inappropriately or abused its’ authority in this case.  

Based on a review of the record, Applicant’s statement and circumstances unique to this case, the Board determined there was sufficient evidence to separate the Applicant due to homosexual conduct and the characterization of service was appropriate in light of the offense committed and lack of mitigating or extenuating circumstances; an upgrade would be inappropriate. 

:  ()  .  The Applicant also contends she was placed on restriction “over hearsay” and “lied on”.  Pursuant to the Manual for Courts-Martial (2005 ed.) Part V, the Military Rules of Evidence, other than with respect to privileges, do not apply at NJP proceedings and any relevant matter may be considered if in compliance with 

requirements of the law.  Thus, hearsay evidence is permitted if the commanding officer deems it relevant.  There is no evidence in the record or presented by the Applicant to prove the command acted inappropriately or abused its’ authority in 
allowing the alleged introduction of hearsay or any other relevant evidence at the NJP proceedings previously discussed.  Based on the foregoing, the Board has determined the Applicant’s contentions are without merit and the awarded discharge was appropriate.  An upgrade would not be appropriate. 

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

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 134 (Indecent acts with another).

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