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

  ex-LCpl, USMC
Docket No. MD03-01017

Applicant’s Request

The application for discharge review was received on 20030521.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20040408.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MARCORSEPMAN Par. 6207.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I received a General (Under Honorable Conditions) discharge, but I served my country honorably.  By not having any bad conduct or disciplinary reviews in my service record book.  It seems as if I received a dishonorable discharge because I can’t use my G.I. bill that I paid into,  I am requesting an upgrade to Honorable so that I can receive the Montgomery G.I. bill order to further my education.”

Documentation

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

Letter from Employer, R_ C. B_, dtd Feb 25, 2003
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990417 - 990919	COG

Period of Service Under Review:

Date of Enlistment:  990920		Date of Discharge:  020531

Length of Service (years, months, days):

	Active:  02  08  12
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  42

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3	Conduct:  4.2 [Extracted from SJA Memo of May 16, 2002]

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, CoC, Marksman Rifle Badge

Days of Unauthorized Absence:  None 

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

GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MARCORSEPMAN Par. 6207.

Chronological Listing of Significant Service Events:

020401:	Charge Sheet made by SSgt T_ J_ L_, USMC, concerning Applicant’s homosexual activity.

020409:	Applicant's Statement made to Capt P_ S_, USMC, denying homosexual activity.

020415:	Investigating Officer inquiry into Applicant’s alleged homosexual conduct contained in service record.

020507:	Applicant notified of intended recommendation for discharge by reason of homosexual conduct as evidenced by having made a statement that you are homosexual and for engaging in homosexual acts.   Applicant also advised that the command was recommending a General (Under Honorable Conditions) but that the least favorable characterization of service could be Under Other Than Honorable Conditions.  

020513:	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  Applicant also elected in lieu of a hearing, a written statement in rebuttal to the proposed separation.  Applicant elected the right to obtain copies of the documents used to support the basis for the separation. 

020514:	Applicant requests for a conditional waiver to an Administrative Board provided she receives a General characterization of service.

020514:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of homosexual conduct, specifically for making a statement that she is a homosexual, and engaging in a homosexual act in public view. 

020516:	SJA review determined the case sufficient in law and fact.

020521:	GCMCA [CG, MCRD/WRR San Diego] advised the Commandant of the Marine Corps that the Applicant's discharge was directed with a General (Under Honorable Conditions) by reason of homosexual conduct – acts and admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020531 with a General (Under Honorable Conditions) for homosexual conduct - 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).

Issue 1.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by the commission of a homosexual act in public view.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  It must be noted that most Marines serve honorably and well and therefore earn honorable discharges.   In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  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.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  Representation at a personal appearance hearing is recommended but not required.

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.  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 92, disobey a lawful order.

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 “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