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

FOR OFFICIAL USE ONLY

ex-PFC, USMC
Docket No. MD06-00919

Applicant’s Request

The application for discharge review was received on 20060623.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Good Conduct.”  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 20020426.  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 characterization of the discharge and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of homosexual conduct - admission.

PART I – APPLICANT’S ISSUES AND DOCUMENTATION

Decisional Issues

Equity -- Applicant was confused about sexual orientation following rape

Documentation

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

Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19971216 - 19971228	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19971229		Date of Discharge:  19990115

Length of Service (years, months, days):

Active:    01  00  17
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  4

Education Level:  10 GED			AFQT:  37

Highest Rank:  PFC				MOS:  1833

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (2)				Conduct:  4.4 (2)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  NONE

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

UNDER OTHER THAN HONORABLE CONDITIONS/HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207.

Chronological Listing of Significant Service Events:

981201:	Applicant's Voluntary Statement made to a Criminal Investigation Division investigator concerning his out of the ordinary sexual relationships while in the military.

981203:	U. S. Marine Corps Criminal Investigation Division report.

981218:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexual conduct.  Applicant informed the least favorable character of service possible was as under other than honorable conditions.

981218:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

981218:	Commanding Officer recommended Applicant’s discharge under other than honorable conditions by reason of homosexual conduct.  [Date extracted from Commander, 2d Marine Division, II Marine Expeditionary Force letter dated 990114.]

990114:	SJA review determined the case sufficient in law and fact.

990114:	GCMCA, Commander, 2d Marine Division, II Marine Expeditionary Force, directed the Applicant's discharge under other than honorable conditions by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990115 by reason of homosexual conduct - admission (A and B) with a service characterization of under other than honorable conditions.  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).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant contends that he was not then and is not now a homosexual and admitted to homosexual conduct because he was confused about his sexual orientation after allegedly being raped by another male.  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.  During that inquiry, the Applicant also freely admitted to having voluntarily engaged in bisexual and/or homosexual acts openly in public view on more than one occasion while on active duty.   He also stated his intent to continue engaging in bisexual activity with his girlfriend and other males.  The Applicant’s behavior met the criteria authorizing a characterization of service as under other than honorable conditions.  Accordingly, the Board has determined that the Applicant’s separation by reason of homosexual conduct was equitable and proper.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  The statement contained in the application, which the Applicant did not allege during the inquiry that preceded his discharge, was found to be insufficient justification to warrant a change in the reason for, or characterization of, discharge.  Relief denied.

The Applicant requested an upgrade in order to obtain Veterans’ benefits.  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the 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 can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Examples of documentation that may 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.  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.  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 125 (Sodomy).

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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