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

  ex-Pvt, USMC
Docket No. MD05-00608

Applicant’s Request

The application for discharge review was received on 20050218.  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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050608.  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.  “re-enlistment back into the united states military”

2.  “To whom it may concern

My name is C_ R_ H_ (Applicant).  My social security Number is (number deleted).  I am writing to you concerning my service record.  I enlisted into the United States Marine Corps, in the summer of 2000.  I departed for Boot Camp on February 26, 2001.  After a month in recruit training, I approached my Senior Drill Instructor Staff Sergeant O_, and proceeded to tell him that I was a homosexual.  I said and did what I did because I got scared.  I was young and immature.  Nothing at that point in time could have prepared me for what I was endeavoring upon.  I am not trying to justify my actions.  I knew it was immoral and extremely wrong of me, to say it; though I knew it was totally wrong.  The behavior that I exhibited was unsuitable.  My whole life, I had a great zeal to serve my God and my Country.  I do not believe it is just, that my disciplinary actions were to bare me from ever re-enlisting into the United States Military.  This Country was founded upon dreams.  With everything that has happened to this Country and all over the world has made me regret what choice I had made at Boot Camp.  I am not a homosexual, and I do have a fiancé.  I am coming to you as a man, a man who is asking for forgiveness.  I am prepared to make any sacrifice for a chance to re-enlist into the United States Military.  I have talked to several recruiters and they say I may have a chance, but would like me to continue to petition for any type of an upgrade or pardon.  As it stands today, my Re-code is an RE-3F, with a Separation Code of HRB1.  I made a dire mistake that I do not want to pay for, for the rest of my life.  I have learned from my actions.  I have grown as a man in many ways.  I want my chance to serve this great Country, and her people.  Thank you for your time, patience, and assistance.  I would appreciate a response to my request sent to me at the following address:

C_ R_ H_ (Applicant)
(Applicant's address deleted)

Thanks again

Sincerely,

C_ R_ H_ (Applicant)”

Documentation

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

None were submitted

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		000609 - 010225	COG

Period of Service Under Review:

Date of Enlistment:  010226		Date of Discharge:  010329

Length of Service (years, months, days):

	Active:    00  01  04
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rank:  Pvt			MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NMA*			Conduct:  NMA*

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No marks assigned.

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

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

Chronological Listing of Significant Service Events:

010319:	Applicant's Voluntary Statement concerning his homosexuality.

010319:	Preliminary inquiry into circumstances surrounding admission of homosexuality.

010319:	Applicant notified of intended recommendation for discharge by reason of homosexual conduct as evidenced by his statement that he admitted to being a homosexual.  The least favorable characterization of service which you may receive is uncharacterized.

010319:	Applicant advised of rights and having consulted 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.

010319:	Commanding Officer recommended the Applicant’s uncharacterized discharge by reason of homosexual conduct due to admission.  The factual basis for this recommendation was as a result of the Fact Finding Inquiry conducted by the Staff Judge Advocates Office dated 010319.  

010323:	SJA review determined the case sufficient in law and fact.

010327:	Commanding General, Marine Corps Recruit Depot/Western Recruiting Region, San Diego, CA directed the Applicant's uncharacterized discharge by reason of homosexual conduct - admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010329 with an uncharacterized character of service for homosexual admission (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).

Issues 1-2.  The Applicant contends that he was not and is not a homosexual and admitted to being a homosexual for the sole purpose of obtaining a discharge from the Marine Corps.  Per reference (a), the Applicant’s in-service statement to his chain-of-command that he was a homosexual created a rebuttable presumption that he engaged in, or had the propensity to engage in homosexual acts.  The Applicant did not submit any evidence to rebut this presumption prior to his discharge.  The inquiry initiated following the Applicant’s admission determined that his statement was credible and was not made for the purpose of avoiding further training.  Accordingly, the Board has determined that the Applicant’s separation by reason of homosexual conduct was equitable and proper.  The statement contained in the application that the Applicant’s admission was due to his youth and immaturity was found to be insufficient justification to warrant a change in the reason for discharge.  Relief denied.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization.  Applicant's service record did not contain any unusual circumstances during his less than two months in the military to warrant a change of discharge to "honorable."  Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety 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 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 any documentation for the Board to consider.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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.  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 31 Aug 2001, Paragraph 6207, HOMOSEXUAL CONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023