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

 ex-Pvt, USMC
Docket No. MD00-00797

Applicant’s Request

The application for discharge review, received 000607, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001214.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/HOMOSEXUAL ACT, authority: MARCORSEPMAN Par. 6207.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because it was based on one isolated incident in 1 yr, 1 mo, and 26 days of service with no other adverse action.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  961119		Date of Discharge:  980114

Length of Service (years, months, days):

	Active:    01  01  26
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  13			AFQT:  47

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  3.9 (3)			Conduct:  3.9 (3)

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/HOMOSEXUAL ACT, authority: MARCORSEPMAN Par. 6207.

Chronological Listing of Significant Service Events:

971029:	Applicant's Voluntary Statement concerning her homosexuality.  Complete statement on microfiche.

971113:	NJP for violation of UCMJ, Article 125:
Specifications: Commit sodomy of LCpl K_ R_, and LCpl C_ E_ M_ between Jun97 and Aug97.
Awarded forfeiture of $450.00 per month for 2 months, reduction to Pvt.  Appealed on 971113.  Appeal denied in part on 971202.  Award: Red to Pvt.  All other punishment is hereby remitted.

971113:	Counseled for deficiencies in performance and conduct.  [Failure to conform to Marine Corps standards, specifically recent NJP for violations of Articles 125 and 134 of the UCMJ.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

971126:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexual conduct as evidenced by her statement that she engaged in homosexual acts and admitted to being a homosexual.

971126:	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

971209:	Commanding officer recommended discharge under other than honorable conditions by reason of homosexual conduct.  The factual basis for this recommendation was failure to conform to the standards of the Marine Corps.  The specific reasons for separation were self-admission of homosexuality and homosexual acts in violation of Marine Corps policy.

971230:	SJA review determined the case sufficient in law and fact.

971231:	GCMCA [Commanding General] directed the applicant's discharge under other than honorable conditions by reason of homosexual act.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980114 under other than honorable conditions for homosexual act (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In the applicant’s issue, the Board disagrees with the applicant’s assertion the discharge was based on one isolated incident.  The investigation revealed letters and testimony that indicated applicant’s homosexual activity had been ongoing for some period of months.  Further, the applicant acknowledged awareness of the Marine Corps policy on homosexuality, in her own hand in her enlistment contract.  While the applicant’s short tenure in the Marine Corps was unremarkable, the conviction at NJP and self-admission of homosexuality and homosexual acts compromises the high standards of order and good discipline and does not warrant recharacterization of the discharge as honorable.  Therefore relief is denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is reminded that she remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.  Representation at a personal hearing is strongly recommended.  The applicant is also reminded that the Marine Corps Separation and Retirement Manual is modified from time to time to reflect changes in U.S. law and DoD policies.  The Board encourages the applicant to monitor the changes in these policies and to reapply in the event of a modification, which could favor a change in the character of her discharge.

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual (MCO P1900.16E), effective 18 Aug 1995 until Present, Paragraph 6207, HOMOSEXUAL CONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023