DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2157-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW NAVAL RECORD OF FORMER XXX-XX- USMC Ref: (a) 10 U.S.C. §1552 (b) 10 U.S.C. §654 (repealed) (c) UNSECDEF memo of 20 Sep 11 (Correction of Military Records Following Repeal of 10 U.S.C. §654) (d) USECDEF Memo, “Guidance to MilitaryDischarge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 of 26 Feb 20 (2) OMPF Administrative Remarks (Arrest Entry) of 2 Aug 77 (3) Notice of Proposed Less Than Honorable Discharge Action of 18 Jul 77 (4) ADB Waiver of 15 Aug 77 (5) CommandingOfficer’s recommendation of 15 Aug 77 (6) Nonjudicial punishment of 1 Sep 77 (7) Clinical Record Consultation Sheet of 19 Sep 77 (8) ADB Results of 29 Sep 77 (9) SJA Endorsement of 17 Oct 77 (10) CG Discharge Recommendation of 26 Oct 77 (11) DD Form 214 of 18 Nov 77 (12) Conduct Average of 18 Nov 77 1. Pursuant to the provisions of reference (a), Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), that his under other than honorable (OTH) characterization of service be changed to honorable and narrative reason for discharge. He also impliedly requested that the separation authority and separation code be changed on his Report of Separation from Active Duty (DD Form 214). 2. The Board reviewed Petitioner’s allegations of error and injustice on 16 November 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include reference (d) guidance. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Petitioner enlisted in the Marine Corps and began a period of active duty on 3 February 1975. See enclosure (11). c. On 4 June 1977, Petitioner was arrested by civil authorities for “Frequenting a place of lewdness,” convicted, and sentenced to 30 days of confinement. See enclosure (2). d. On 18 July 1977, Petitioner was notified of administrative discharge action by reason of misconduct due to commission of a homosexual act and resultant discreditable involvement with civilian authorities. After being afforded his procedural rights, Petitioner elected to have his case heard before an administrative discharge board (ADB). See enclosure (3). e. On 15 August 1977, Petitioner and his commanding officer (CO), entered into an agreement that Petitioner would waive his right to have his case heard before an ADB provided he was recommended for a general discharge. See enclosure (4). f. On 15 August 1977, Petitioner’s case was forwarded to the separation authority with the recommendation that he received a “Less Than Honorable Discharge by reason of misconduct due to the commission of a homosexual act and the resultant discreditable involvement with civilian authorities.” See enclosures (5). g. On 1 September 1977, Petitioner received nonjudicial punishment (NJP) for disobeying a lawful order to attend morning colors. See enclosure (6). h. On 19 September 1977, medical entry regarding Petitioner’s statement denying he had homosexual tendencies. See enclosure (7). i. On 29 September 1977, Petitioner’s ADBfound that he did commit misconduct due to commission of a homosexual act and resultant discreditable involvement with civilian authorities. See enclosure (8). j. On 17 October 1977, a staff judge advocate reviewed Petitioner’s case and found it to be sufficient in law and fact. See enclosure (9). k. On 26 October 1977, the separation authoritydirected that Petitioner receive a “General Discharge Under Other than Honorable Conditions” by reason of misconduct, homosexual acts. See enclosure (10). l. On 18 November 1977, Petitioner was discharged from Marine Corps with an other than honorable (OTH) characterization of service. See enclosure (11). m. Characterization of service is based in part on conduct marks assigned on a periodic basis. In the Petitioner’s case, his final conduct average was 4.3. At the time of his service, a conduct average of 4.0 was required to be considered for a fully honorable characterization of service. See enclosure (12). n. With his application, Petitioner states that at the time, he was “in the closet” and ashamed of his sexual orientation. He went along with the “Don’t ask, Don’t tell” program in order to stay out of trouble and continue his career as a Marine. In 1977, he was arrested for “Frequenting a place for lewdness.” He was with his partner at the time and both of them were arrested. See enclosure (1). o. Reference (c) sets forth the Department of the Defense's current policies, standards and procedures for correction of military records following the “don’t ask, don’t tell” (DADT) repeal of 10 U.S.C. §654. It provides service Discharge Review Boards with guidance to grant requests to change the narrative reason for discharge to “secretarial authority,” SPD code to “JFF,” re-characterize the discharge to honorable, and reenlistment code to “RE-1J,” when the original discharge was based solely on DADT or a similar policy in place prior to enactment, and there are no aggravating factors in the record, such as misconduct. BOARD CONCLUSION Upon review and consideration of all the evidence of record, especially in light of references (b) and (c), the Board concluded that the Petitioner’s request warrants partial favorable action in the form of relief. The Board found that the main reason for his separation was homosexuality. Although Petitioner’s overall conduct trait average of 4.3 was high enough to be considered for an honorable discharge, due to the seriousness of his civil conviction and NJP, and the agreement entered into with his CO, his characterization of service should be changed to General (under honorable conditions). Additionally, the separation authority should be changed to read “MARCORSEPMAN par 6214,” the separation code should read “JFF1,” and his narrative reason for separation should be change to read “Secretarial Authority.” In view of the foregoing, the Board finds the existence of an injustice warranting the following partial corrective action. BOARD RECOMMENDATION Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214) Indicating that on 18 November 1977, he received a “(under honorable conditions)” characterization of service, separation authority was “MARCORSEPMAN par 6212.1g,” separation code was “JFF2,” and narrative reason for separation was “Directed by the Secretary of the Navy to Correct Official Records.” That no further action be granted. EXECUTIVE DIRECTOR’S CONCLUSION Notwithstanding the Board’s conclusion, I believe to the contrary, the Petitioner’s discharge was too harsh given the Petitioner’s one incident of minor misconduct [disobeying a lawful order to attend morning colors]. Petitioner’s command discharged him solely on his sexual orientation. In accordance with references (b) through (d), Petitioner’s request warrants full relief. Additionally, Petitioner’s average conduct marks were well above 4.0, the minimum for an honorable characterization of service, which demonstrates that he was valued Marine. EXECUTIVE DIRECTOR RECOMMENDATION Petitioner be issued a new Certificate of Release or Discharge from Active Duty (DD Form 214) Indicating that on 18 November 1977, he received an “honorable” character of service, separation authority was “MARCORSEPMAN par 6212.1g,” separation code was “JFF2,” and narrative reason for separation was “Directed by the Secretary of the Navy to Correct Official Records.” Petitioner be issued an honorable discharge certificate. That no further action be granted. That a copy of this report of proceedings be filed in Petitioner’s naval record. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 5. The foregoing action of the Board is submitted for your review and action. 1/15/2021 Assistant General Counsel (Manpower and Reserve Affairs) Reviewed and Approved Executive Director Recommendation (Full Relief)