ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20141001
Characterization of Service Received:   
Narrative Reason for Discharge:    HOMOSEXUAL ADMISSION
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20060315 - 20060501  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20060502	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20061030	Highest Rank/Rate:  HR
Length of Service:   Year(s)     Month(s)   29 Day(s)
Education Level:  	AFQT:  75
Evaluation Marks:  NFIR

Awards and Decorations (per DD 214):	Pistol   

Periods of UA/CONF:  

NJP:    SCM:    SPCM:    CC:     Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20071220
NDRB Documentary Review Docket Number:	ND07-00689
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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant seeks an upgrade to the discharge characterization in order to improve employment prospects.
2.	The Applicant seeks a change to the discharge characterization to HONORABLE or GENERAL due to the repeal of the “Don’t Ask, Don’t Tell” (DADT) policy.
3.	The Applicant seeks a change to the Narrative Reason for separation due to the repeal of the “Don’t Ask, Don’t Tell” (DADT) policy.
4.	The Applicant seeks a change to the RE-Code due to the repeal of the “Don’t Ask, Don’t Tell” (DADT) policy.
5.	The Applicant contends that post service conduct warrants consideration.

Decision

Date:  20140314		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .
By a vote of  the Reenlistment Code shall  .

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 Board 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 Board did complete a thorough review of the circumstances that led to the Applicant’s discharge and the discharge process to ensure the discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial.  Based on the Applicant’s spontaneous admission of homosexual orientation on 4 October 2006 and a signed voluntary statement acknowledging homosexual orientation on 5 October 2006, the Command administratively processed the Applicant for separation. Based on the “Don’t Ask, Don’t Tell” policy in effect during the Applicant’s time of enlistment, processing for administrative separation was mandatory.  When notified of administrative separation processing using the  procedure, the Applicant waived the right to consult with a qualified counsel and exercise the rights to submit a written statement and request a General Court-Martial Convening Authority review.

:  (Nondecisional) The Applicant seeks an upgrade to the discharge characterization in order to improve employment prospects.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  

:  (Decisional) ()  .  The Applicant seeks a change to the discharge characterization to HONORABLE or GENERAL due to the repeal of the “Don’t Ask, Don’t Tell” (DADT) policy.  The Applicant received an UNCHARACTERIZED (ENTRY LEVEL SEPARATION) characterization of service at discharge.  In accordance with the Naval Military Personnel Manual (MILPERSMAN), (NAVPERS 15560C), Change 11 (effective 29 April 2005 until 15 June 2008), Article 1910-148, SEPARATION BY REASON OF HOMOSEXUAL CONDUCT, which was in effect at the time of the Applicant’s discharge, the Applicant’s in-service statement to the psychologist and voluntary written admission of homosexual tendencies documented the Applicant had created a rebuttable presumption for a propensity to engage in homosexual acts.

The Applicant should understand that an UNCHARACTERIZED (ENTRY LEVEL SEPARATION) discharge is warranted when separation is initiated while a member is within the first 180 days of continuous active duty except when the characterization of service as UNDER OTHER THAN HONORABLE CONDITIONS (UOTHC) is authorized or HONORABLE is clearly warranted.  The Applicant spontaneously admitted homosexual orientation to a psychologist on 4 October 2006 and voluntary signed a statement acknowledging homosexual orientation on 5 October 2006.  The Applicant was subsequently notified of administrative separation on 10 October 2006, having only served 162 days at the time of notification.  Since the Applicant was notified of separation proceeding before having served more than 180 days, an UNCHARACTERIZED (ENTRY LEVEL SEPARATION) discharge is the most appropriate characterization of service even though the Applicant had accumulated 182 days of service, including the date of separation, by the time of separation processing had concluded.  In reviewing the Applicant’s discharge package, the NDRB believes clarification of the commanding officer’s recommendation for separation with an HONORABLE discharge characterization was based on either an incorrect interpretation of the references or by anticipating and basing his recommendation on a separation date exceeding 180 days of service rather than the actual (not assumed) calculation of service total from initial entry into active service to the date of separation’s notification.  The commanding officer’s recommendation was processed by legal authorities and the separation authority, Commander, Navy Personnel Command, correctly determined the proper characterization of service was UNCHARACTERIZED (ENTRY LEVEL SEPARATION) in accordance with the references.

As stated in the Applicant’s previous case review by this board, with respect to nonservice-related administrative matters and civilian employment, an UNCHARACTERIZED (ENTRY LEVEL SEPARATION) is considered the equivalent of an HONORABLE or GENERAL (UNDER HONORABLE CONDITIONS) discharge.  For clarification, an UOTHC discharge 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.  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.  Neither a GENERAL (UNDER HONORABLE CONDITIONS) nor an UOTHC was warranted at the time of the Applicant’s discharge based on the absence of misconduct during the Applicant’s enlistment.  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 NDRB found that the Applicant had no misconduct that would rate an UOTHC discharge, and there was no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization.  The NDRB determined that the Applicant’s notification of separation proceedings at 162 days of service renders an UNCHARACTERIZED (ENTRY LEVEL SEPARATION) discharge as the most appropriate characterization of service.  Relief denied.

:  (Decisional) ()  .  The Applicant seeks a change to the Narrative Reason for separation due to the repeal of the “Don’t Ask, Don’t Tell” (DADT) policy.  At the time of discharge, processing for separation was mandatory in accordance with the MILPERSMAN and Department of Defense Policy under the “Don’t Ask, Don’t Tell” 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 Admission, in accordance with Article 1910-148 of the MILPERSMAN, coupled with a record free of misconduct, was proper and equitable at the time it was issued.  However, given the repeal of the “Don’t Ask, Don’t Tell” policy, the narrative reason of Homosexual Admission is no longer proper.  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 Admission 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).  The record of service reflects that, at the time of discharge, the Applicant was notified of only one reason for discharge - Homosexual Admission and that no aggravating factors were involved.  In cases where no other reason for separation set forth in the Naval Military Personnel Manual or the Marine Corps Separation and Retirement Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  Accordingly, the NDRB determined that the narrative reason for separation will change to Secretarial Authority; 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.  Relief granted.

4:  (Decisional) ()  .  The Applicant seeks a change to the RE-Code due to the repeal of the “Don’t Ask, Don’t Tell” (DADT) policy.  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 of 20 September 2011.  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 received an RE-4 reentry code due to early termination of service for Homosexual Admission while in service.  The Applicant’s service record documents otherwise acceptable conduct.  The NDRB determined that the record of service would warrant a recommendation for retention had the Applicant not been involuntarily separated for Homosexual Admission.  As such, in accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum, the NDRB determined that the Applicant’s reentry code shall change to RE-1.  Relief granted.

5:  (Decisional) ()  .  The Applicant contends that post service conduct warrants consideration.  The NDRB considers 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.  The Applicant provided a written personal statement, amplifying verbal testimony, California Court documents, and evidence of obtaining both a Bachelors and Masters degree.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  The Board determined that the documentation submitted by the Applicant demonstrated a misconduct-free lifestyle before, during, and post-service.  Relief granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, the administrative separation process, and the Applicant’s personal testimony, the NDRB found the discharge was proper and equitable at the time of discharge.  However, 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 remain UNCHARACTERIZED (ENTRY LEVEL SEPARATION) but 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.  The assigned reentry code shall change to RE-1.  

The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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