ex-RM3, USN

Current Discharge and Applicant’s Request

Application Received: 20100419
Characterization of Service Received:  
Narrative Reason for Discharge:  HOMOSEXUAL CONDUCT (ADMISSION)
Authority for Discharge:  MILPERSMAN 3630400 

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

Summary of Service

Prior Service:
Inactive: 	USNR (DEP)	19871231 - 19880918  	Active:	USN 	19880919 - 19930611  
Inactive:  USNR                 19930612 - 19941002  

Period of Service Under Review:
Date of Current Enlistment:  19941003	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19950621	Highest Rank/Rate:  RM2
Length of Service:   Year(s)     Month(s)   19 Day(s)
Education Level:  	AFQT:  61
Evaluation Marks:	Performance:  3.6 (1)	Behavior:  3.6 (1)	OTA:  3.6

Awards and Decorations (per DD 214):	         

Periods of UA/CONF:  

NJP:    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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 
2 October 1996, 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.

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service in order to facilitate re-enlistment into the National Guard. 

2.	Decisional issues:  The Applicant contends that his discharge characterization of service was inequitable in that his service was nothing but dedicated, honorable service.

Decision

Date:  20110804	        	Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  HOMOSEXUAL CONDUCT (ADMISSION)

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified one decisional issue for the NDRB’s consideration.  Additionally, the NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.  The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no record of punitive or non-punitive disciplinary actions.  The Applicant’s service record documents a prior period of active duty enlistment in which the Applicant received an Honorable Discharge certificate and was transferred to the U.S. Navy Reserve.  The Applicant re-enlisted into the active component Navy on 03 October 1994 and was subsequently discharged on 21 June 1995 for Homosexual Conduct (Admission) in accordance with Article 3630400 (now Article 1910-148) of the Naval Military Personnel Manual (MILPERSMAN).  Separation processing was mandatory if the Commanding Officer (CO) believed, based on credible information, that the service member had committed homosexual conduct as defined in MILPERSMAN 1910-010. 

Based on the evidence presented (the Applicant’s personal statement), the Command administratively processed the Applicant for separation.  When notified of administrative processing for separation using the notification procedure, the Applicant waived his right to consult with a qualified legal counsel, to submit a written statement to the Separation Authority, and to request a General Court-Martial Convening Authority review.  As such, the Command forwarded their recommendation for expeditious administrative separation - under Honorable conditions - to the Commander, Bureau of Naval Personnel (BUPERS).  On 15 June 1995, BUPERS authorized discharge and directed the separating command assign a characterization of service as warranted by service record, based on enlisted performance evaluation.  

(Nondecisional Issue) The Applicant seeks an upgrade in the characterization of his service in order to facilitate re-enlistment into the National Guard.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating reenlistment into the armed services.  Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge.

(Decisional Issue) ()  .  The Applicant contends that his discharge characterization of service was inequitable in that his service reflected nothing but dedicated, honorable service.

Propriety – In accordance with the MILPERSMAN and service policy at the time of discharge, homosexual conduct was grounds for separation from the naval service.  A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member’s sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts.  Sexual orientation is considered a personal and private matter, and is not a bar to continued service unless manifested by homosexual conduct as defined above.  Therefore, separation processing is mandatory, if the Commanding Officer believed that, by a preponderance of the evidence, homosexual conduct as defined above had occurred.  A service member’s statement that he or she is a homosexual, or words to that effect, create a rebuttable presumption that he or she engages in, attempts to engage in, has a propensity to engage in, or intends to engage in, homosexual acts.  The Applicant’s in-service statement to his chain-of-command that he had engaged in homosexual acts before returning to active duty created a rebuttable presumption that he engaged in, or had the propensity to engage in, homosexual acts.  The Applicant did not submit any evidence to rebut this presumption prior to his discharge.  The inquiry that was initiated following the Applicant’s admission determined that his statement was credible and was not made for the purpose of avoiding further training.  Accordingly, the NDRB determined the Applicant’s separation by reason of homosexual conduct was proper.

Equity – At the time of discharge, the policy of the Navy was to judge the suitability of persons to serve in the Navy on the basis of conduct and their ability to meet required standards of duty, performance, and discipline; to distinguish sexual orientation, which is personal and private, from homosexual conduct; and to make clear the procedural rights of a service member.  Characterization of service at discharge is the recognition of the quality of a Sailor’s performance and conduct.  Specific to the Applicant’s discharge, characterization of service was directed by BUPERS to be as warranted by the service record.  An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of the Sailor’s service has met the standards of accepted conduct and performance of duty for military personnel.  A member is eligible for a General (Under Honorable Conditions), if during the current enlistment, the member’s final evaluation average was 2.49 or below.  The Applicant’s service record reflects a final evaluation trait average for this period of enlistment of 3.6.  The Applicant’s overall trait average for this enlistment is that which is required for an Honorable characterization; therefore, the NDRB determined that an Honorable characterization of service was warranted and that an inequity had occurred.  Relief, as requested, is awarded.    

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall  , but the narrative reason for separation shall remain HOMOSEXUAL ADMISSION.  Due to the passage of 15 years since the date of the Applicant’s discharge, he no longer remains eligible for any further review by the Naval Discharge Review Board.  The Applicant is directed to the Board for Correction of Naval Records for any further issues regarding his service record. 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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