ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080806
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19870213 - 19870405  	Active:	R  19850703 - 19860201  HON
			Active:	USMC 19870406 - 19910513  HON

Period of Service Under Review:
Date of Enlistment:  19910514	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  19930903	Highest Rank:  
Length of Service:    Year(s)    Month(s)  20  Day(s)
Education Level:  	AFQT:  46
MOS:  2512
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	COA GCM SSDR NDSM CAR SASM w2* MM KLM

Periods of UA/CONF:  

NJP:  
- 19921202:	Article 92     (Failure to obey an order or regulation - 2 specifications)
	Article 86     (UA: Leave appointed place of duty)
	Article 112a (Wrongfully use controlled substances)
	Article 125   (Commit sodomy)
Article 134   (Wrongfully engage in sexual intercourse with someone other than his wife for money or compensation)
	Awarded:     Suspended:  

- 19930902:	Article 92 (Disrespectful in language to a NCO) 
	Awarded:   Suspended:  

SCM:            SPCM:            CC:  

Retention Warning Counseling:  
- 19920824:	For lack of leadership and bearing of an NCO as evidence by your continual poor judgment in tasking Marines and your use of profanity.

NDRB Documentary Review Conducted (date):	20000525
NDRB Documentary Review Docket Number:	MD00-00029
NDRB Documentary Review Findings:		Discharge proper as issued - no change warranted.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  	                            Service/Medical Record:             Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:   	From Representation:         	From Congress member:    

                    Other Documentation:   B.S. in Psychology, certified addiction counselor card, ten personnel references, criminal record check

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 June 1989 until 
17 August 1995, Paragraph 6207, HOMOSEXUALITY 

B.  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 V, Para 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

1.  The Applicant states that his characterization of discharge is discriminatory and untrue.

Decision

Date:  20090830            Location: Washington D.C.     Representation: Disabled American Veterans (DAV)

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included  6105 counseling warning,  non-judicial punishments (NJP’s) for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence by leaving a formation), Article 92 (Failure to obey an order or regulation: disrespectful language to a NCO, having personnel in barracks during after-hours and not signing in guests into barracks logbook), Article 112a (Drug abuse, wrongfully using a controlled substance), Article 125 (Committing sodomy) and Article 134 (Wrongfully engaging in sexual intercourse with someone other than his wife for money or compensation).  The Applicant also had a pre-service drug waiver for using marijuana  prior to entering the Marine Corps, and he acknowledged  complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 9 February 1987.  Based on the offense(s) committed, processing for administrative separation was mandatory.   When notified for administrative separation processing, the Applicant elected  rights to consult with qualified counsel, submit a written statement, and request an administrative board, which he appeared at with a civilian attorney.  The administrative discharge board determined that the preponderance of the evidence supported the offenses alleged and recommended that he be separated from the Marine Corps with an Under Other Than Honorable characterization.

:  (Decisional) ()  .  The Applicant contends his characterization of discharge is discriminatory and untrue.  He stated that the more serious charges that resulted in his discharge did not happen during his current enlistment in the Marine Corps.  The Applicant made statements that his life (background) was chaotic while living in Puerto Rico—before he enlisted in the Marine Corps,.  He told a Naval Criminal Investigative Service (NCIS) agent that from adolescence until joining the Marine Corps, he sold himself (sexually) for money to men and women.  He continued to say that this was not a one time thing, but a “lifestyle.”  Although he had a drug waiver for using marijuana, the Applicant admitted to the NCIS agent to using drugs, which he described as “harder than marijuana,” prior to and subsequent to entering the Marine Corps.

The Board reviewed an NCIS investigation report on the Applicant, which noted that several Marines in the Applicant’s platoon made statements that he told them that he engaged in homosexual activities in exchange for money ($400.00) to send his wife home.  In addition, the Applicant’s wife at the time told NCIS personnel that they separated due to his inability to be faithful to their marriage.  She stated that she was aware of the Applicant’s bisexuality and that he had admitted affairs to her with at least one woman and two men.  Finally, the applicant himself confessed to NCIS personnel that he entered a known off-limits establishment that catered to homosexual patrons in order to prostitute himself.    

During the NDRB’s hearing, the Applicant claimed he was unable to answer certain questions due to memory problems and the time that had elapsed since his discharge, which is not uncommon.  However, in the NDRB’s opinion, the Applicant was evasive and not forthcoming in answering many specific questions that pertained directly to the allegations for which he was discharged.  Despite taking into account the Applicant’s professional accomplishments (education) and his reported years of sobriety, the NDRB discerned that his testimony was “not credible” and clearly contradicted his statements for the record made to NCIS investigators during their investigation.  Relief denied.      

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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. 

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) 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.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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