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

 ex-LCpl, USMC
Docket No. MD01-00857

Applicant’s Request

The application for discharge review, received 010612, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020118.  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 HONORABLE CONDITIONS (GENERAL)/Dis invol - homosexuality-act (with admin discharge board), authority: MARCORSEPMAN Par. 6207.3b.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I was a good Marine, I would like to have an Honorable Discharge before I pass.  I have aids.

Documentation

Only the service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		850524 - 850617	COG

Period of Service Under Review:

Date of Enlistment:  850618		Date of Discharge:  870522

Length of Service (years, months, days):

	Active:  01  11  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  65

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (7)			Conduct:  4.4 (7)

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 HONORABLE CONDITIONS (GENERAL)/Dis invol - homosexuality-act (with admin discharge board,  authority:  MARCORSEPMAN Par. 6207.3b.

Chronological Listing of Significant Service Events:

860327:	Counseled for deficiencies in performance and conduct [financial irresponsibility - writing checks without sufficient funds in checking account].  Necessary corrective actions explained, sources of assistance provided.  

860709:	Acknowledged eligible but not recommended for promotion to Cpl for month of July because of immaturity and irresponsibility of finances.

860911:	NJP for violation of UCMJ, Article 134:  wrongfully alter the date of birth on his application for armed forces identification card.
Awarded reduction to E-3, forfeiture of $200.00 per month for 2 months.  Not appealed.

861208:	Forfeiture of $200 pay per month for 2 months awarded at NJP 860911 is hereby suspended to a forfeiture of $200 pay per month for 1 month.

870113:	Counseled for deficiencies in performance and conduct [attitude towards job performance and personal appearance].  Necessary corrective actions explained, sources of assistance provided.  Administrative separation warning issued.

870202:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of homosexuality.

870203:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected waive all rights except the right to obtain copies of the documents used to support the basis for the separation, right to submit a rebuttal to the proposed separation.  Applicant subsequently elected an Administrative Discharge Board.

980204:	Preliminary Inquiry by Capt S_ A. W_,USMC:  Preliminary inquiry conducted to determine applicant's fitness for retention or discharge.  Inquiry concluded applicant is a homosexual and was involved in a homosexual action on 20 Dec 86.  From the investigation, it's reasonable to conclude that such conduct on part of applicant is likely to occur again.  Recommend discharge with characterization of service as General (under honorable conditions).

870205:	Commanding officer recommended discharge with a General (Under Honorable Conditions) by reason of homosexuality.  The factual basis for this recommendation was engagement, attempted engagement or solicitation of homosexual acts.  Commanding officer’s comments:  "Notwithstanding Lance Corporal L_'s overall satisfactory service record, he has failed to meet acceptable standards of conduct required to Marines.  Homosexuality is incompatible with service in the U.S. Marine Corps, adversely affecting the ability of our Corps to maintain discipline, good order, morale and public acceptability of military service.  It is deemed that his engaging in a homosexual act is a significant negative act of conduct which outweighs the positive aspects of his record.  Awarding this Marine an honorable discharge would be a disservice to those Marines who are and have served with honor.  Therefore, it is strongly recommended that the separation recommended herein be a general discharge (under honorable conditions)."

870209:	Applicant's statement of rebuttal of separation proceedings stating he is not a homosexual.

870413:	Administrative Board found the allegation set forth in the notice of proposed separation is supported by a preponderance of the evidence and recommended discharge on the basis of homosexuality with a General discharge under honorable conditions.

870415:	Applicant written response to findings of the Administrative Discharge Board, denying the allegations and desires retention.

870511:	SJA review determined the case sufficient in law and fact.

870513:	GCMCA CG, 3d MAW directed the applicant's discharge with a General (Under Honorable Conditions) by reason homosexuality.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870522 with a General (Under Honorable Conditions) due to homosexuality (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

The applicant’s issue states:  “I was a good Marine, I would like to have an Honorable Discharge before I pass.  I have aids.”  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  There was no such error in this case.  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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, may be considered.  The applicant failed to provide any documentary evidence to demonstrate he is a person of good character and conduct (community service, employment history, and clean police record).  Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended.
 
Pertinent Regulation/Law (at time of discharge)

A.. Paragraph 6207, HOMOSEXUALITY, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C, effective 1 Oct 82 until 26 Jun 89.

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 “afls10.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