Docket No. 7066-20
Ref:   Signature Date

From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:  REVIEW NAVAL RECORD OF FORMER USMC, 
 
Ref:   (a) 10 U.S.C. 1552 
       (b) 10 U.S.C. 654 (Repeal) 
       (c) UNSECDEF Memo of 20 Sep 11 (Correction of Military Record following Repeal of U.S.C. 654) 
      
Encl:  (1) DD Form 149 with attachments 
       (2) Case summary 
       (3) Subject's naval record 
 
1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps, filed enclosure (1) with this Board requesting a change to his discharge characterization, and the corresponding removal of all related references to homosexuality on Petitioner’s Certificate of Release or Discharge from Active Duty (DD Form 214), to reflect current military directives and policy.    
 
2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 9 October 2020, and pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations and policies. 
 
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. Although enclosure (1) was not filed in a timely manner, it is in the interest of justice to waive the statute of limitations and review the application on its merits. 

c. Petitioner began a period of active duty on 25 January 1965.  Petitioner’s original service number was 2124848. On 6 April 1966, Petitioner received non-judicial punishment (NJP) for unauthorized absence (UA) lasting one day.  On 13 April 1966, Petitioner received NJP again for UA lasting one day.  On 11 May 1967, Petitioner received NJP for insubordinate conduct to a senior non-commissioned officer by willfully disobeying a lawful order. 

d. Shortly after making certain statements and admissions regarding homosexual activity on 12 May 1967, the Naval Investigative Service began an investigation into Petitioner’s sexual behavior.  On 25 May 1967, a psychiatric evaluation diagnosed Petitioner with “sexual deviation, as manifested by homosexuality.”  On 1 June 1967, Petitioner provided a voluntary statement admitting to engaging in homosexual activities multiple times.    

e. On 23 June 1967, Petitioner received NJP for insubordinate conduct toward a non-commissioned officer by using disrespectful language.   

f.  On 17 July 1967 Petitioner was notified of administrative separation proceedings and of being subject to an undesirable discharge by reason of unfitness for engaging in homosexual activity for the past two years.  The Petitioner waived his rights to counsel and to present his case to an administrative separation board.  On 1 August 1967, the Staff Judge Advocate for the separation authority determined the Petitioner’s separation was legally and factually sufficient.  On 25 August 1967, the Petitioner was discharged from the Marine Corps with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reenlistment code.         
 
g. References (b) and (c) set forth the Department of the Navy'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 the guidance to normally grant requests to change the characterization of service to “honorable” or “general (under honorable conditions),” (GEN) narrative reason for discharge to “secretarial authority,” separation code to “JFF,” and reentry code to “RE-1J” when the original discharge was based solely on DADT or a similar policy in place prior to enactment of it and there are no aggravating factors in the record, such as misconduct.  
 
CONCLUSION: 
 
Upon review and consideration of all the evidence of record, and especially in light of references (b) and (c), the Board concludes that Petitioner’s request warrants partial relief.  The Board noted Petitioner’s record supports that he was administratively discharged due to his homosexuality based on DADT, and that there were no aggravating factors surrounding his homosexual acts/conduct.  However, the Board observed that the Petitioner was involved in multiple instances of misconduct unrelated to homosexuality.  In this regard, the Board noted the Petitioner’s overall record of military service and current Department of the Navy policy as established in reference (c), and concludes that relief in the form of upgrading his discharge to GEN, and changing his narrative reason for separation, separation authority, separation code, and reenlistment code is proper at this time. 
 
Notwithstanding the corrective action recommended below, the Board was not willing to upgrade the Petitioner’s discharge characterization to honorable.  The Board observed the Petitioner had four NJPs in his record for offenses separate and distinct from homosexuality.  The Board noted that the combined NJPs could have independently formed the basis for administrative separation for misconduct due to the commission of a serious offense, and misconduct due to a pattern of misconduct, and could have potentially resulted in an OTH characterization.   
 
Additionally, the Board determined that in fairness to those Marines who serve honorably and without incident, Marines should receive no higher discharge characterization than is due.  The Board noted that an honorable discharge is appropriate only if the Marine’s service is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  The Board concluded that significant negative aspects of the Petitioner’s conduct and/or performance independent from his homosexuality outweighed the positive aspects of his military record, and that even though flawless service is not required for an honorable discharge, in this case, a GEN discharge characterization and no higher is appropriate. 
 
The Board also noted that absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely or grant other relief for the purpose of facilitating benefits from the Department of Veterans Affairs (DVA) or enhancing educational or employment opportunities.  Lastly, the Board observed that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of years. 
 
RECOMMENDATION: 
 
In view of the above, the Board directs the following corrective action. 
 
That Petitioner’s character of service be changed to “General (Under Honorable Conditions),” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MARCORSEPMAN par. 6214,” the separation code be changed to “JFF1,” and the reentry/reenlistment code be changed to “RE-1J.” 
 
It is further directed that Petitioner be issued a new DD Form 214. 
 
That any and all previously existing DD Form 214, and DD Form 215, as applicable, be removed from Petitioner’s naval record. 
 
That a copy of this report of proceedings be filed in Petitioner’s naval record. 
 
That, upon request, the DVA be informed that Petitioner's application was received by the Board on 22 September 2020.  
 
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.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulation, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.