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

 ex-LCpl, USMC
Docket No. MD02-00094

Applicant’s Request

The application for discharge review, received 011012, 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 020620.  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/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

The NDRB did note an administrative error on the original DD Form 214.  Block 18, Remarks should read: “CONTINUOUS HONORABLE ACTIVE DUTY SERVICE FROM 930525 UNTIL 961025”, Block 25, Separation Authority should read: “MARCORSEPMAN Par. 6210.6” vice “MARCORSEPMAN PAR 6207”, Block 28, Narrative Reason for Separation should read:  “MISCONDUCT” vice “HOMOSEXUAL ACT”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank.

Documentation

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

Applicant's statement dated April 20, 2001
Copy of DD Form 214 (Member 1 and 4)
Copy of DD Form 214 worksheet
Copy of DD Form 215 (Member 1 and 4)
Character reference, undated
Character reference, undated
Character reference, undated
Copy of verification of military experience and training date September 1, 1996 (7 pages)
Character reference, undated
Character reference, undated
Character reference, undated
Forty-eight pages from applicant's service record
Character reference, undated
Character reference dated July 20, 1999
Character reference dated July 20, 1999
Character reference dated July 15,1999
Character reference, undated
Character reference, undated
Character reference dated July 15, 1999
Character reference, undated
Character reference dated July 15, 1999
Character reference, undated
Character reference dated July 15, 1999
Character reference dated July 15, 1999
Character reference, undated
Character reference, undated
Character reference, undated
Character reference dated July 15, 1999
Character reference, undated

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		930525 - 961025	HON
	Inactive: USMCR(J)		930415 - 930524	COG

Period of Service Under Review:

Date of Enlistment:  961026		Date of Discharge:  990823

Length of Service (years, months, days):

	Active:    02  09  28
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (5)			Conduct:  4.3 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR with 2 Stars, Certificate of Commendation, AFSM, GCM, NATO Medal

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

961026:	Applicant reenlisted for 4 years.

980721:	Applicant arrested for soliciting a crime against nature, specifically, applicant was apprehended soliciting sex from another male.  Unbeknownst to the applicant the male was an undercover Jacksonville policeman.

980904:	Applicant informed eligible but not recommended for promotion to Sgt for the month of August 1998 promotion period because of your demonstrated lack of good judgment.

981105:	Applicant informed eligible but not recommended for promotion to Sgt for the month of Sep 1998 promotion period because of your demonstrated lack of good judgment.

981105:	Applicant informed eligible but not recommended for promotion to Sgt for the month of Oct 1998 promotion period because of your demonstrated lack of good judgment.

981105:	Applicant informed eligible but not recommended for promotion to Sgt for the month of Nov 1998 promotion period per paragraph 1204.3 MCO P1400.32B.

981207:	Applicant informed eligible but not recommended for promotion to Sgt for the month of Dec 1998 promotion period per paragraph 1204.3 MCO P1400.32B

990302:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and homosexual conduct.

990228:	Applicant informed eligible but not recommended for promotion to Sgt for the months of Dec, Jan, Feb 1998/1999 promotion period because of poor judgment, and awaiting civil trial.

990302:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and homosexual conduct.  The factual basis for this recommendation was your arrest by civilian law enforcement authorities for 'crimes against nature' due to your attempt to solicit sex from an undercover male policeman. 

990326:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990328:	Applicant informed eligible but not recommended for promotion to Sgt for the months of March/April 1999 promotion period because of IAW paragraph 1204.3_ pending administrative separation.

990615:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to the commission of a serious offense and homosexual conduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990804:	SJA review determined the case sufficient in law and fact.

990809:	GCMCA [Commander, Marine Corps Base, Camp Lejeune, NC] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990823 under other than honorable conditions for misconduct due to the commission of a serious offense (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).

The applicant introduced no decisional issues for consideration by the Board.  However, in the applicant’s letter of 010420, the applicant asserts it was unfair for him to be discharged, while other Marines continued to serve who allegedly violated several regulations.  The Board reviews each case on its own merits.  In the applicant’s case, the Board found the applicant’s arrest by civilian law enforcement authorities for 'crimes against nature' due to his attempt to solicit sex from an undercover male policeman constituted the commission of a serious offense and warranted processing for separation, normally under other than honorable conditions.  On 990615, an Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to the commission of a serious offense and homosexual conduct, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. While he may feel that he was not treated fairly, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until present). 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 80, solicitation.

C.  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.  

D.  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.

E.  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