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

  Ex-Pvt, USMC
Docket No. MD03-01433

Applicant’s Request

The application for discharge review was received on 20030903.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040610.  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:  UNCHARACTERIZED/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.  “I am requesting a change that my discharge be changed from Uncharacterized to Honorable Discharge.  While my stay in the military was short because of my own personal issues, I have since overcame my shortcomings and have matured into an responsible citizen.  I feel my Uncharacterized discharge was inadequate, because I experienced no sort of disciplinary action, nor have I conducted myself in any unbecoming behavior during my stay.  Furthermore I feel that an Honorable discharge will enhance my current status within society as a law abiding citizen, and a Uncharacterized discharge will only continue hamper my progress and be frowned upon by society.  Please respond in writing to the issue I have stated above.”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4)
Three pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR (J)		970315 - 970421	COG

Period of Service Under Review:

Date of Enlistment:  970422		Date of Discharge:  971117

Length of Service (years, months, days):

	Active:    00  06  26
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  45

Highest Rank:  Pvt

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (2)			Conduct:  4.2 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNCHARACTERIZED/HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207.

Chronological Listing of Significant Service Events:

970925:	Applicant's Voluntary Statement concerning his homosexuality.

971009:	Preliminary Inquiry Report.

971016:	Applicant notified of intended recommendation for separation with an uncharacterized by reason of homosexual conduct as evidenced by his statement that he admitted to being a homosexual.

971016:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

971016:	Commanding officer recommended separation with an uncharacterized by reason of homosexual conduct due to propensity to engage in homosexual acts.  The factual basis for this recommendation was self-admittance of homosexual tendencies while on active duty in the United States Marine Corps, as evidenced by preliminary inquiry.  

971027:	Applicant's Voluntary Statement concerning his homosexuality.

971107:	SJA review determined the case sufficient in law and fact.

971107:	GCMCA [Commanding General] directed the Applicant's separation with an uncharacterized by reason of homosexual conduct - admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was separated on 19971117 with an uncharacterized discharge 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:  By regulation, a member whose discharge process is initiated within the first 180 days of enlistment is given a service characterization of  “Uncharacterized” unless there were unusual circumstances regarding performance or conduct, which would merit an “honorable” characterization.  The Applicant’s service record did not contain any unusual circumstances during his time in the military to warrant a change of discharge to “honorable.”  Relief denied.  

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, civilian employment, educational pursuits, etc., an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

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 should 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 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	

BOARD A.  The Marine Corps Separation and Retirement Manual (MCO P1900.16E), effective 18 Aug 95 until Present, Paragraph 6207, HOMOSEXUAL CONDUCT, states:

1.  Policy

a.  Homosexual conduct is grounds for separation from the Marine Corps under the bases described in paragraph 6207.2 below. Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage.  A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts.  A member's sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described in paragraph 6207.2 below.

b.  Section 654(a), 10 U.S.C., contains the congressional findings related to the policy concerning homosexual conduct in the Armed Forces.  These findings are as follows:

(1) Section 8 of Article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a navy, and make rules for Government and regulation of the land and naval forces.

(2) There is no constitutional right to serve in the Armed Forces.  

(3) Pursuant to the powers coffered by Section 8 of Article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the Armed Forces.

(4) The primary purpose of the Armed Forces is to prepare for and prevail in combat should the need arise.

(5) The conduct of military operations requires members of the Armed Forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.

(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.

(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.

(8) Military life is fundamentally different from civilian life in that:

(a) The extraordinary responsibilities of the Armed Forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and

(b) The military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.

(9) The standards of conduct for members of the Armed Forces regulate a member's life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the Armed Forces.

(10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the Armed Forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty. 

(11) The pervasive application of the standards of conduct is necessary because members of the Armed Forces must be ready at all times for worldwide deployment to a combat environment.

(12) The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the Armed Forces in actual combat routinely make it necessary for members of the Armed Forces involuntarily to accept living conditions and working conditions that are often Spartan, primitive, and characterized by forced intimacy with little or no privacy.

(13) The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstance of military service.

(14) The Armed Forces must maintain personnel policies that exclude persons whose presence in the Armed Forces would create an unacceptable risk to the Armed Forces' high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

(15) The presence in the Armed Forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

(16) The presence of Armed Forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create and unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

2.  Bases for Separation.

a.  The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, unless there are further approved findings that:

(1) Such acts are a departure from the member's usual and customary behavior;

(2) Such acts under all circumstances are unlikely to recur;

(3) Such acts were not accomplished by the use of force, coercion, or intimidation;

(4) Under the particular circumstances of the case, the member's continued presence in the Marine Corps is consistent with the interest of the Marine Corps in proper discipline, good order, and morale; and

(5) The member does not have a propensity or intent to engage in homosexual acts.

b.  The member has made a statement that he/she is a homosexual, or words to that effect, unless there is a further approved finding that the member has demonstrated that he/she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  A statement by a service member that he/she is a homosexual, or words to that effect, creates a rebuttable presumption that the service member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  The service member shall be advised of this presumption and given the opportunity to rebut the presumption by presenting evidence demonstrating that he/she does not engage in, attempt to engage in, have a propensity to engage in, or intend to engage in homosexual acts.  Propensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts.  In determining whether a member has successfully rebutted the presumption that he/she engages in, attempts to engage in, or has a propensity to engage or intent to engage in homosexual acts, some or all of the following may be considered:

(1) Whether the member has engaged in homosexual acts; 

(2) The member's credibility;

(3) Testimony from others about the member's past conduct, character, and credibility;

(4) The nature and circumstances of the member's statement;

(5) Any other relevant to whether the member is likely to engage in homosexual acts.

(This list is not exhaustive; any other relevant evidence may also be considered.)

c.  The member has married or attempted to marry a person known to be of the same biological sex (as evidenced by the external anatomy of the persons involved).

3.  Inquiry

a.  Responsibility

(1) The member's commander is authorized to initiate fact-finding inquiries concerning homosexual conduct.  A commander may initiate a fact-finding inquiry only when he/she has received credible information that there is a basis for a discharge.  Commanders are responsible for ensuring that inquiries are conducted properly and that no abuse of authority occurs.

(2) A fact-finding inquiry may be conducted by the commander personally or by a person he or she appoints.  It may consist of an examination of the information reported or a more extensive investigation as necessary.

(3) The inquiry should gather all credible information that directly relates to the grounds for possible separation.  Inquiries shall be limited to the factual circumstances directly relevant to the specific allegations.

(4) If a commander has credible evidence of possible criminal conduct, he or she shall follow the procedures outlined in the Manual for Courts-Martial, United States, 1984, and JAGINST 5800.7C, JAGMAN.

(5) These inquiry provisions do not apply to activities of the Naval Criminal Investigative Service and other Defense criminal investigative organizations that are governed by DoDINST 5505.8.

b.  Bases for Conducting Inquiries.  A commander will initiate an inquiry only if he or she has credible information that there is a basis for discharge.  Credible information exists when the information, considering its source and the surrounding circumstances, supports a reasonable belief that there is a basis for discharge.  It requires a determination based on articuable facts, not just a belief or suspicion.

c.  A basis for discharge exists if:

(1) The member has engaged in a homosexual act;

(2) The member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts; or 

(3) The member has married or attempted to marry a person of the same sex.

d.  Credible information does not exist, for example, when:

(1) The individual is suspected of engaging in homosexual conduct, but there is no credible as described, to support that suspicion;

(2) The only information is the opinions of others that a member is a homosexual;

(3) The inquiry would be based only on rumor, suspicion, or capricious claims concerning a member's sexual orientation; or

(4) The only information known is an associational activity such as going to a gay bar, possessing or reading homosexual publications. Associating with known homosexuals, or marching in a gay rights rally in civilian clothes.  Such activity, in and of itself, does not provide evidence of homosexual conduct.

e.  Credible information exists, for example, when:

(1) A reliable person states that he or she observed or heard a service member engaging in homosexual acts, or saying that he/she is a homosexual or is married to a member of the same sex;

(2) Commanders shall exercise sound discretion regarding when credible information exists.  They shall examine the information and decide whether an inquiry is warranted or whether no action should be taken.

(3) Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, whether the member is a heterosexual, a homosexual, or a bisexual.  However, upon receipt of credible information of homosexual conduct (as described above), commanders or appointed inquiry officials may ask members if the engaged in such conduct.  The member should first be advised of the Marine Corps policy on homosexual conduct and, if applicable, the provisions of Article 31, UCMJ.  Should the member choose not to discuss the matter further, the commander should consider other available information.  Nothing in this provision precludes questioning a member about any information provided by the member in the course of the fact finding inquiry or any related proceeding; nor does it provide the member with any basis for challenging the validity of any proceeding or the use of any evidence, including a statement by the member, in any proceeding.

(4) At any point during the inquiry, the commander or appointed inquiry official must be able to explain clearly and specifically which grounds for separation he or she is attempting to verify and how the information being collected relates to those specific separation grounds.

(5) A statement by a service member that he/she is a homosexual or bisexual creates a rebuttable presumption that the service member engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.  The service member shall be given the opportunity to present evidence demonstrating that he/she does not engage in, attempt to engage in, or have a propensity or intent to engage in homosexual acts.

g.  Legal Effect.  The procedures set forth in paragraph 6207.3 create no substantive or procedural rights.

4.  Disposition

a.  Based on the inquiry described in paragraph 6702.3, the commander must determine whether there is probable cause (a reasonable belief) to believe a basis for administrative separation exists.  If the commanding officer determines probable cause exists, the commanding officer shall initiate separation processing.  

b.  If the commanding officer determines probable cause does not exist, the commanding officer shall terminate the inquiry and any administrative action already initiated.

c.  Certain homosexual conduct may constitute both a basis for administrative separation processing and a violation of the UCMJ.  The UCMJ requires all allegations of misconduct to be thoroughly investigated.  Upon review of the results of the investigation, the cognizant commanding officer has discretion to determine what, if any, disciplinary action is appropriate.  The provisions for administrative discharge for homosexual conduct do not preclude disciplinary action under the UCMJ when such action is appropriate by the cognizant commanding officer.  In this regard, there is no right on the part of any individual to demand trial by court-martial in lieu of administrative separation processing.

5.  Characterization.  Characterization of service or description of separation shall be in accordance with the guidance in table 6-1 of this chapter.  When the sole basis for separation is a homosexual conduct, a characterization under other than honorable conditions may be issued only if such a characterization is warranted under table 6-1 and there is a finding that during the current term of service the member attempted, solicited, or committed a homosexual act in the following circumstances:

a.  By using force, coercion, or intimidation;

b.  With a person under 16 years of age;

c.  With a subordinate in circumstances that violate customary military superior/subordinate relationships;

d.  Openly in public view;

e.  For compensation;

f.  Aboard a military vessel or aircraft; or 

g.  On another location subject to military control under aggravating circumstances having an adverse impact on discipline, good order, or morale comparable to the impact of such activity aboard a vessel or aircraft. 

6.  Administrative Separation Board Procedures.  The administrative discharge board procedures outlined in paragraph 6304 shall be used subject to the following guidance.

a.  The administrative separation board shall be informed of the congressional findings as enumerated n subparagraph 6207.1b above.

b.  In addition to the requirements of paragraph 6319, the administrative separation board shall be guided by the following:

(1) If the board finds one or more of the circumstances authorizing separation as described herein is supported by the evidence, the board shall recommend separation unless the board finds that retention is warranted under the limited circumstances described in subparagraphs 6207.2a or 6207.2b

(2) If the board does not find that there is sufficient evidence that one or more of the circumstances authorizing separation as described herein has occurred, the board shall recommend retention unless the case involves another basis for separation of which the member has been duly notified.

(3) The member shall bear the burden of proving throughout the proceeding, by a preponderance of the evidence, that retention is warranted under the limited circumstances described in subparagraphs 6207.2a or 6207.2b.

(4) Findings regarding whether or not retention is warranted under the limited circumstances described are required if the member clearly and specifically raises such limited circumstances.

7.  Separation Authority Action

a.  The separation authority shall dispose of a case according to the following provisions:

(1) If the board recommends retention, the separation authority shall take one of the following actions: 

(a) Approve the finding and direct retention; or

(b) Forward the case to the Secretary of the Navy via CMC (MMSR-3) with a recommendation that the Secretary separate the member under paragraph 6214.

(2) If the board recommends separation, the separation authority shall take one of the following actions:

(a) Approve the finding and direct separation; or

(b) Disapprove the finding based on one of the following considerations:

1 There is insufficient evidence to support the finding; or

2  Retention is warranted under the limited circumstances described in subparagraphs 6207.21 or 6207.2b.

(3) If there has been a waiver of the board proceedings, the separation authority shall dispose of the case in accordance with the following provisions:

(a) If the separation authority determines that there is insufficient evidence to support separation, the separation authority shall direct retention unless there is another basis for separation for which the member has been duly notified; or

(b) If the separation authority determines that one or more of the circumstances authorizing separation as described has occurred, the member shall be separated unless retention is warranted under the limited circumstances described n subparagraphs 6207.a or 6207.b.

8.  Limitations.

a.  Limits the authority of the Secretary of the Navy to take appropriate action to ensure that there has been compliance with the provisions of this policy;

b.  Requires that a member be processed for separation when a determination is made that:

(1)  The member engaged in acts, made statements, or married or attempted to marry a person known to be of the same biological sex for the purpose of avoiding or terminating military service; and

(2)  Separation of the member would not be in the best interest of the Marine Corps;

c.  Precludes retention of a member for a limited period of time in the interests of national security as authorized by the Secretary of the Navy;

d.  Authorizes a member to seek Secretarial review unless authorized in procedures promulgated by the Secretary of the Navy;

e.  Precludes separation in appropriate circumstances for another reason as described in this chapter; or

f.  Precludes trial by court-martial in appropriate cases.