DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7131-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER USMC, XXX-XX- Ref: (a) 10 U.S.C. 1552 (b) 10 U.S.C. 654 (Repeal) (c)UNSECDEF memo, “Correction of Military Records following Repeal of 10 U.S.C. 654,” of 20 Sep 2011 Encl: (1) DD Form 149 (2) Case summary (3) Advisory opinion of 25 April 2021 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting an upgrade to his discharge to reflect an honorable characterization of service, and that his narrative reason for separation, separation code, and reentry code be changed so as not to reveal his sexual orientation. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 21 June 2021, 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, relevant portions of the Petitioner’s naval service records, and applicable statutes, regulations, and policies. The Board also considered enclosure (3), a 25 April 2021 advisory opinion (AO) from a qualified medical professional. 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 review the application on its merits. c. Petitioner enlisted in the Marine Corps on 28 July 1997. On 27 May 1999, and again on 14 June 2001, he received written warnings due to his failure to report before the end of curfew and for his lack of initiative, respectively. On 17 August 2001, the Petitioner told his supervisor that, he is “tired of not being able to be myself, I am tired of having to hide who I really am, it is very stressful” and acknowledged he was homosexual. On 19 August 2001, the Petitioner was diagnosed with antisocial personality disorder and adjustment disorder with mixed emotional features. On 24 August 2001, the Petitioner was notified of the initiation of administrative separation processing based on homosexual admission and he waived his right to consult with counsel or to have an administrative discharge board. On 6 September 2001, his company-level commanding officer recommended that he be discharged with an honorable characterization of service, “since his performance and conduct before he made these statements has been honorable.” On 21 September 2001, the Petitioner received nonjudicial punishment for disobeying an order. On 16 October 2001, his battalion-level commanding officer recommended that the Petitioner be discharged with a general characterization of service, “based upon the adverse counselings and disciplinary action in [Petitioner’s] record book and because [Petitioner]’s statement that he is choosing an altered lifestyle over that of being a Marine.” On 30 October 2001, the separation authority directed the Petitioner be discharged with a general characterization of service. On 5 November 2001, the Petitioner was so discharged. At the time of his discharge, his proficiency and conduct marks were 4.4 and 4.4, respectively. d. 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 grant requests to change the characterization of service to “honorable,” narrative reason for discharge to “secretarial authority,” SPD 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. e. Petitioner’s OMPF does not contain any evidence of applicable aggravating factors, and his proficiency and conduct marks reflect performance sufficient to be assigned the honorable discharge. Petitioner provided documentation he has been awarded a service-connected disability by the Department of Veterans’ affairs with an evaluation of 100%; however, the documentation does not indicate the nature of his disability. Based on the Petitioner’s assertion of mental health condition, the Board obtained the enclosure (3) AO. The AO was considered favorable to Petitioner, and concluded that his misconduct may be migitated by his mental health condition. CONCLUSION: Upon review and consideration of all the evidence of record, and in light of references (b) and (c), the Board concludes that Petitioner’s request warrants full relief. The Board noted there were no aggravating factors of misconduct in the Petitioner’s record. The Board considered and concurred with the AO, but found that it could grant relief even without needing to consider the Peititioner’s mental health status, based on his proficiency and conduct marks, the minor nature of his documented misconduct when compared to his overall honorable service record, as well as the fact that the Petitioner’s command chose not to administratively process him based on any misconduct. RECOMMENDATION: Petitioner be issued a new DD Form 214 indicating an honorable characterization of service, discharged involuntarily when directed by the Secretary of the Navy narrative reason for separation, MARCORSEPMAN para 6214 separation authority, JFF1 SPD code, and RE-1J RE-code; and That Petitioner be issued a Certificate of Honorable Service; and 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. 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. 6/23/2021 Executive Director