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

 ex-LCpl, USMC
Docket No. MD03-01422

Applicant’s Request

The application for discharge review was received on 20030827.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be amended or omitted to remove the "negative illustration".  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040608.  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 and the reason for discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/ HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Discharge Review Board,

Although, some time has passes since my discharge from the United States Marine Corps I strongly believe that my discharge should be upgraded to Honorable. Also, I feel that the service’s decision to grant me a General discharge does not apply to my particular case for the following reasons:

•  My average conduct, efficiency and proficiency ratings were good and almost always above the average.
•  I received awards and decorations for my performance.
•  NJP and Page 11 entries were limited to only minor offenses.
•  I was subjected to religious and racial discrimination that impaired my ability to serve.
•  I personally requested to remain on Active duty for the completion of my contract but my request was denied.
•  I also requested an Honorable discharge from my Commanding Officer but my request was denied.
•  I received an NROTC scholarship and was selected to be an officer candidate for the Marine option.
•  My discharge was not the result of promiscuous sexual activity or sexual incidents.
•  I had to personally contact my state senator due to problems that I received throughout my command.
•  My request to be retained on the Inactive Ready Reserve was denied as well as my request to join the military reserve.

Furthermore, I have included an acceptance letter as well as a current schedule of my college classes in order to show the DRB my attempts to become a productive member of society. I have no felony or misdemeanor offenses and have continuously upheld an honorable personal character. Also, along with the other information I would like the discharge review board to consider my current conditional offer of employment from the Central Intelligence Agency which I have included with this letter. Finally, although I my goal to serve to my country through the United States Marine Corps was short lived, my training and years of service to this great country has made feel as if I can make collaborative difference. I feel that my current discharge has and will continue to limits my ability to do just and this is why I ask that my case be review and that I be awarded an Honorable Discharge.

S_ D_ P_”

Documentation

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

Letter from United States Senator, dated September 30, 2002
Admittance notice from Morgan State University, dated March 31, 2003
Letter to Applicant from United States Marine Corps, Marine Corps Recruiting Command, dated March 1, 2001
MARADMIN 129/01 excerpt
Group Special Order, dated October 28, 2002
Four pages from Applicant's service record
Conditional Offer of Employment, dated March 21, 2003
Letter from Hiring Official, undated
Applicant's DD Form 214 (Member 1 and 4)
Unofficial Undergraduate Academic Record, dated August 14, 2003
Letter from Applicant, undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		990729 - 991012	COG

Period of Service Under Review:

Date of Enlistment:  991013		Date of Discharge:  021105

Length of Service (years, months, days):

	Active:  03  00  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  71

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (8)			Conduct:  4.3 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB, NDSM, NUC, MUC, SSDR

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

010612:	Counseled for deficiencies in performance and conduct.  [Your previous acts of disrespectful actions and deportment as well as you continued bypassing leaders within your chain of command to elicit favorable actions on your behalf.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

011003:	NJP for violation of UCMJ, Article 86 (1 specs):
Specification 1: Unauthorized absence from work section from 1300-1330, 011002. [Dismissed]
Violation of UCMJ, Article 91: Communicated disrespect to SSgt S_ in personal gestures, and statements such as "get out of here", and "I don't have time for you" on 010920 
Awarded forfeiture of $283.00 per month for 1 month, restriction and extra duties for 14 days.  Forfeiture suspended for 6 months.  Not appealed.

020315:	Counseled for deficiencies in performance and conduct.  [You were on unauthorized absence from your appointed place of duty, Field Day Formation on 1730, 020307 and did not show up until 1845, 020307.  Not only were you in a unauthorized absence status, but when questioned as to your whereabouts by MGySgt A_, a senior staff NCO, you were evasive, insolent and disrespectful.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

020923:	Applicant's Voluntary Statement made to platoon sergeant and plant chief concerning his homosexuality.  

021010:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of homosexual conduct as evidenced by his statement that he admitted to being a homosexual.

021010:	Applicant's request for honorable discharge.

021010:	Applicant advised of 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.

021017:	Commanding officer recommended discharge general (under honorable conditions) by reason of homosexual conduct.  The factual basis for this recommendation was Applicant’s statement of 020923 that he is a homosexual.  His statement creates a rebuttable presumption that he engages in, attempts to engage in, have the propensity to engage in, or intends to engage in homosexual acts.

021023:	SJA review determined the case sufficient in law and fact.

021024:	GCMCA [Commander, Marine Corps Base, Camp Smedley D. Butler] directed the Applicant's discharge general (under honorable conditions) by reason of homosexual conduct - admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021105 general (under honorable conditions) for homosexual conduct - admission (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.  The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that homosexual admission was the reason the applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) 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 award of nonjudicial punishment (NJP) for a violations of the Uniform Code of Military Justice (UCMJ) for disrespect.  The applicant’s misconduct included unauthorized absence and disrespect to a senior staff NCO on 020307.  The Applicant was also counseled on 010612 for disrespectful actions and deportment.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his misconduct, and falls below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s 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 civilian life subsequent to leaving naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief is appropriate.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 [e.g., Article 86, unauthorized absence for more than 30 days].

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