ex-YN3, USN

Current Discharge and Applicant’s Request

Application Received: 20120426
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)	20010512 - 20010823  	Active:		20010824 - 20050929  

Period of Service Under Review:
Date of Current Enlistment:  20050930	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070227	Highest Rank/Rate:  YN3
Length of Service:   Year(s)     Month(s)   28 Day(s)
Education Level:  	AFQT:  55
Evaluation Marks:	Performance:  3.0 (2)	Behavior:  2.5 (2)	OTA:  3.17

Awards and Decorations (per DD 214):	, , , ,  (2), , , ESWS

Periods of UA/CONF:   

NJP:  	SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  NONE

NDRB Documentary Review Conducted (date):	20080306
NDRB Documentary Review Docket Number:	ND08-00264
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 11, effective 29 April 2005 until 15 June 2008, 
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 (PR) 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 the characterization of his service, contending that his discharge was inequitable in that he denied he was homosexual and that the findings of the administrative board were based on hearsay with no credible evidence.  He also seeks a change due to repeal of the “Don’t Ask Don’t Tell” (DADT) policy.

Decision

Date:  20120524	       	Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .
By a vote of 5-0 the Reentry code shall change to RE-1.  

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 two decisional issues related to the equity and propriety of the discharge action for the NDRB’s consideration.  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 did not include any NAVPERS 1070/613 (Page 13) retention-counseling warnings, commanding officer nonjudicial punishments, or trials by courts-martial.  The record further reflects a previous honorable enlistment period.  The service record documents that Sailors made allegations against the Applicant that he was homosexual, or had a propensity to engage in homosexual activity, or had engaged in homosexual activity.  These allegations resulted in a local command investigation, however, the service record is incomplete in that it fails to document the results of the investigation into the allegations.  As a result of the command investigation, on 16 October 2006, the Applicant’s command notified him that he was being processed for administrative separation.  Separation was mandatory per the Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective from 29 April 2005 until 15 June 2008, Article 1910-148, SEPARATION BY REASON OF HOMOSEXUAL CONDUCT.  When notified of administrative separation processing using the  notification procedure with a least favorable characterization of his service being Under Other Than Honorable Conditions.  The Applicant elected to exercise his right to consult with a qualified counsel and requested that an administrative board be convened to present evidence demonstrating that he did not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in, homosexual acts.  On 14 December 2006, the administrative discharge board convened; after hearing the evidence of record, the board determined - by a vote of 3-0 - that a preponderance of the evidence supported the reasons for administrative separation as stated in the administrative separation notice.  Additionally, the board determined, by a vote 3-0, that separation was warranted with a General (Under Honorable Conditions) characterization of service.  On 11 January 2007, the Applicant’s commanding officer endorsed the findings of the board and forwarded the recommendation for administrative separation of the Applicant from the Navy with the recommendation for a General (Under Honorable Conditions) discharge.  On 08 February 2007, the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy due to Homosexual Act.  The discharge was effected on 27 February 2007.  

:  (Decisional) ()  .  The Applicant seeks a change to the characterization of his service, contending that his discharge was inequitable in that he denied he was homosexual and that the findings of the administrative board were based on hearsay with no credible evidence.  Furthermore, the Applicant seeks a change to his characterization of service due to repeal of the DADT policy.  The NDRB conducted a detailed examination of the Applicant’s record of service, to include the verbatim transcripts of the administrative hearing board, to determine whether the discharge and associated characterization of service met the pertinent standards of propriety and equity.  The record revealed sworn statements and testimony made by other Sailors that clearly revealed the Applicant had engaged in, had attempted to engage in, and had a propensity to engage in, homosexual conduct.  The administrative hearing board determined that reliable persons stated that they had observed behavior that amounts to a non-verbal statement by a member that they are homosexual or bisexual (i.e., behavior that a reasonable person would believe was intended to convey that the member engages in, attempt to engage in or has the propensity to engage in, homosexual acts).  Accordingly, the Applicant’s commanding officer processed him for administrative separation in accordance with the MILPERSMAN that was in effect at that time.  The Applicant was represented by counsel and presented his affirmative defense that he did not engage in and had no intent to engage in any homosexual conduct.  In making its decision, the hearing board documented that it found the testimony of the Sailors to be more credible than that of the Applicant.  In accordance with the MILPERSMAN, with a clean service record and adherence to the minimum acceptable levels of performance and conduct, a homosexual conduct discharge, without aggravating factors, should have normally rated an Honorable characterization of service upon 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.  The service record documents no misconduct of record throughout two periods of enlistment with an evaluation Overall Trait Average during the current enlistment period of 3.17.  Moreover, the Applicant was recommended for promotion to Second Class Petty Officer and was evaluated twice by his chain of command as a “Must Promote.”  The NDRB reviewed verbatim record of the administrative hearing board and determined that the finding of homosexual conduct (act) lacked any aggravating factors to warrant a less than honorable discharge.  As such, by a vote of 5-0, the NDRB determined that the Applicant’s characterization of service, as issued, was inequitable and that relief was warranted with an upgrade to Honorable.  Relief granted.

Narrative Reason for Separation: 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.  This memorandum further directs that the narrative reason for separation should normally change to Secretarial Authority with a corresponding Separation Code designator (SPD code) of JFF.  The record of service reflects that, at the time of discharge, there was no other reason for discharge other than the local administrative board findings of a homosexual act and that no aggravating factors were involved.  Accordingly, the NDRB determined that relief in the form of a change to the narrative reason for discharge, as requested, 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: 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.  Additionally, the USD (P&R) policy memorandum stated that, if applicable, the new RE code should be RE-1J, however, this is an Air Force specific re-entry code.  In accordance with the guidance and intent of the policy memorandum, the applicable U.S. Navy reentry code would be RE-1 (eligible for reenlistment).  The Applicant’s service record documents faithful service with no misconduct other than the allegation of a homosexual act, which was found by an administrative hearing board to be supported by a preponderance of the evidence.  The Applicant received an RE-4 reentry code due to early termination of his service due to Homosexual Act.  The NDRB determined that the record of service along with his assigned billet performance, specific duties, enlisted qualifications, and previous period of honorable service, coupled with his command’s recommendation for promotion to Second Class Petty Officer would warrant a recommendation for retention had the Applicant not been separated for Homosexual Act.  As such, in accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum, the Applicant’s reenlistment code will change to RE-1.

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 but inequitable at the time of discharge.  Pursuant to Public Law 111-321, and in accordance with the 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 HONORABLE, the narrative reason for separation shall change to SECRETARIAL AUTHORITY with the corresponding SPD code of JFF, and the reentry code shall change to RE-1. 

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