ex-ITSN, USN

Current Discharge and Applicant’s Request

Application Received: 20120228
Characterization of Service Received:  
Narrative Reason for Discharge:  HOMOSEXUAL ACT
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20001229 - 20010813  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010814	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040920	Highest Rank/Rate:  IT3
Length of Service:   Year(s)     Month(s)   07 Day(s)
Education Level:  	AFQT:  52
Evaluation Marks:	Performance:  2.3 (3)	Behavior:  2.0 (3)	OTA:  2.22

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  

- 20031220:	Article  (Failure to obey order or regulation, 3 specifications)
	Specification 1: Hugging ET3, another male
	Specification 2: Kissing ET3, another male
	Specification 3: Fondling the genital area of ET3, another male
	Awarded:    Suspended:  

- 20040917:	Article  (Absence without leave, 2 specifications)
	Specification 1: From 0600-1200 on 20040915
	Specification 2: From 1030-1400 on 20040917
	Article  (False official statement) - 3 specifications
	Awarded:     Suspended:   

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20020212:	 (Details not known, extracted from Commanding Officer’s letter dated 20040812)

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), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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.  Public Law 111-321, signed 22 Dec 2010 (implemented 20 Sep 2011). 
 
D.  Under Secretary of Defense (P&R) Memorandum (Repeal of Don’t Ask Don’t Tell), 20 Sep 2011. 

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

Applicant’s Issues

1.  The Applicant seeks a change to Honorable, contending that his discharge was inequitable and warrants an upgrade in accordance with the repeal of “Don’t Ask, Don’t Tell.” 

By a vote of  the Characterization shall  GENERAL (UNDER HONORABLE CONDITIONS)
By a vote of  the Narrative Reason shall  .
By a vote of  the Reentry Code shall  RE-4.

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 submitted one issue related to the propriety and equity of the discharge action 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 action met the pertinent standards of equity and propriety.  The Applicant’s record of service documents one retention counseling warning (NAVPERS 1070/613) while in service and two nonjudicial punishments for violations of the Uniform Code of Military Justice: Article 92 (Failure to obey an order or regulation, 3 specifications), Article 86 (Absence without leave, 2 specifications), and Article 107 (False official Statement, 3 specifications).  The Applicant was administratively separated from the Naval Service due to Homosexual Conduct (Act).  When notified of administrative separation processing using the board  procedure, the Applicant was advised that the least favorable characterization of service warranted at discharge was Under Other Than Honorable Conditions.  The Applicant acknowledged his understanding of the notification of separation proceedings and his rights therein; he elected to exercise the right to consult with a qualified legal defense counsel, requested to present his case before an administrative hearing board, and chose to submit a written statement to the Separation Authority for his consideration.
 
:  (Decisional Issue) ()  PARTIAL .  The Applicant seeks a change to his DD Form 214 characterization of service due to the repeal of “Don’t Ask, Don’t Tell.”  The Applicant received an Under Other Than Honorable Conditions characterization of his service at discharge.  In accordance with the Naval Military Personnel Manual (MILPERSMAN), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-148, Separation by Reason of Homosexual Conduct, which was in effect at the time of the Applicant’s discharge, the Applicant’s purported homosexual act created a rebuttable presumption that he engaged in, or had the propensity to engage in, homosexual acts.  The Applicant chose to challenge and rebut this presumption at an administrative hearing board.  The Applicant testified that he was not homosexual, nor did he engage in a homosexual lifestyle, that he did not have a propensity to engage in further homosexual conduct and, finally, that he should be retained.  Having heard the testimony of record, by a vote of 3-0, the administrative hearing board members found a preponderance of the evidence supported the determination that a homosexual act did occur as stated in the discharge notification.  In making this determination, the board determined that the Applicant had engaged in a homosexual act and that this behavior was the Applicant’s usual and customary behavior.  Additionally, the board determined that, based on the nature and circumstances of the Applicant’s statement, coupled with the testimony of others in regards to the Applicant’s homosexual act, a propensity for further homosexual conduct did exist.  Furthermore, the board determined, by a vote of 3-0, that the Applicant should be separated.  Finally, the board recommended, by a vote of 3-0, that the discharge characterization should be Under Other Than Honorable Conditions.  The Commanding Officer reviewed the findings of the board and, though he concurred with the findings, he recommended the Applicant be retained; he forwarded the separation recommendation to the Commander, Navy Personnel Command for final determination.  Commander, Navy Personnel Command reviewed the documentation of record and concurred with the board’s findings, directing the Applicant’s discharge for Homosexual Act with an Under Other Than Honorable Conditions characterization of his service and a reentry code of RE-4.  At the time of discharge, processing for separation was mandatory in accordance with the MILPERSMAN and Department of Defense Policy.  Given the detailed documents of record, the Applicant’s personal statement, and the commanding officer’s statement in the administrative separation endorsement, the NDRB determined that the Applicant’s separation by reason of Homosexual Conduct (Act), in accordance with Article 1910-148 of the MILPERSMAN, was proper and equitable at the time it was issued. 
Characterization of Service: Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  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.  Moreover, an Under Other Than Honorable Conditions characterization is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service record reflected two NJPs involving failure to obey orders or regulations, absenting himself from his unit without authority, and making false official statements.  The first NJP was a result of sexual contact while aboard ship in violation of the ship’s orders, which resulted in separation processing; the second NJP occurred three days prior to discharge.  The NDRB determined that the Applicant’s misconduct was a significant negative aspect in his performance of duties but did not rise to the level of acts or omissions that were a significant departure from the conduct expected of a member.  As such, the NDRB determined that the characterization of service received at discharge was inequitable and, by a vote of 5-0, shall change to General (Under Honorable Conditions).  Partial relief granted.  Full relief to Honorable was not granted due to the Applicant’s misconduct. 

Narrative Reason for Discharge: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum regarding the repeal of the “Don’t Ask, Don’t Tell” law, service discharge review boards should normally grant requests to change the narrative reason for discharge wherein Homosexual Conduct was the only basis for discharge, and there were no aggravating factors involved.  This memorandum further directs that the narrative reason for separation should normally change to Secretarial Authority with a corresponding Separation Code designator (SPD code).  The record of service reflects that, at the time of discharge, the Applicant met the requirements for separation due to Misconduct (Pattern of Misconduct), Misconduct (Commission of a Serious Offense), and Homosexual Conduct (Act) if the command had so chosen.  However, the Applicant was notified only of processing for separation due to Homosexual Conduct (Act) with one aggravating factor being involved - that the consensual homosexual act did occur aboard a Naval ship.  For the consensual act, the Applicant received NJP for violation of ship regulations.  In reviewing the discharge in light of the repeal of the “Don’t Ask, Don’t Tell” policy, the NDRB determined that the misconduct of record, had it been a consensual, heterosexual act, would not have required mandatory processing for separation.  The conduct was a violation of Article 92, but that violation does not mandate processing for separation.  Since the command chose to notify the Applicant of no other reason for discharge other than the homosexual conduct, the NDRB determined, by a vote of 5-0, that relief in the form of a change to the narrative reason for discharge to Secretarial Authority shall be granted.  Additionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MILPERSMAN 1910-164) with a corresponding Separation Code designator of JFF.
 
Reentry Code: The Applicant did not specify a request for change in his assigned reentry code, however, in light of the review under the repeal of the “Don’t Ask, Don’t Tell” law, the NDRB conducted a review to determine if any change was warranted.  In accordance with the Under Secretary of Defense (P&R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 September 2011, service review boards should normally grant requests to change the reentry code to an immediately-eligible-to-reenter category if the discharge and corresponding reentry code was: (1) based solely on DADT or a similar policy in place prior to enactment of DADT; and (2), there were no aggravating factors in the record, such as misconduct.  As authorized by the Assistant Secretary of the Navy (Manpower & Reserve Affairs), the NDRB may change reentry codes as set forth in the USD (P&R) memorandum dated 20 September 2011.  The Applicant received an RE-4 reentry code due to early termination of his service for Homosexual Conduct (Act).  The Applicant’s service record documents faithful service with two nonjudicial punishments for misconduct.  Though the NDRB found the Applicant’s service warranted to be characterized as General (Under Honorable Conditions), the NDRB also determined that the misconduct of record (regardless of the sexual orientation involved) was still misconduct and would have rendered the Applicant not being recommended for retention or reenlistment.  As such, having considered the guidance as set forth in the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum, the NDRB determined that the reentry code will not change.  The Applicant’s reentry code shall remain RE-4.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the administrative separation process, the NDRB found the discharge was proper and equitable at the time of discharge.  However, pursuant to Public Law 111-321 and guidance set forth in the Under Secretary of Defense (P&R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 Sep 2011, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall change to SECRETARIAL AUTHORITY with a corresponding SPD code of JFF, and the authority for discharge shall change to MILPERSMAN 1910-164; however, the reentry code shall remain RE-4.  The Applicant remains eligible for a personal appearance hearing for 15 years from the date of the discharge.  The Applicant is directed to the Addendum for additional information. 

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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