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

ex-LCpl, USMC
Docket No. MD04-01070

Applicant’s Request

The application for discharge review was received on 20040614.  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 20041222.  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: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I would like to have my discharge upgraded to “Honorable’ because my service as a Marine was just that.  Honorable.  I did make mistakes as a Marine, but not mistakes worthy of dishonor.  At the time of my seperation, I could not recall the truth of the situation due to the nature of the situation itself.  The military and the Marine Corps specifically have a long standing policy of intolerance to homosexuals in service.  If I would have been allowed to tell the truth about my sexual orientation, this would never have been an issue, and I would be in the Marine Corps to this very day.  I love the Corps, I love my country, it just so happens, that my Corps, and my country, do not like my sexual orientation.  I did make a mistake, I did break a rule, I had someone in my barracks room after the official visiting hours, but this in and of itself would have been grounds soley for NJP (Article 15) at best.  I was accused of a crime that I did not commit, but was unable to tell my side of the story.  I was forbidden to tell my story by the “Dont ask, dont tell’ policy.  I am haunted by this every day of my life now.  Dispite this, I still have pride in my service to my country and my Corps.  I wish that I could have told my story and not have been worried about being kicked out of the Corps, but that did not happen.  I was kicked out anyway.  I believed at the time, if I did not admit to being a homosexual, I would have been disciplined for the infraction and would be allowed to remain in service, but instead, I was discharged under other than honorable conditions.  My service as a United States Marine was honorable, I did my job to the best of my ability and recieved 2 meritorious masts as a result of my actions and service.  All of this was in a very short period of time.  I was only allowed to serve for one year and two months on active duty.  In that time I also completed more than the required amount of MCI’s, continually improved my PFT scores, and developed a trusting and outstanding relationship with my superiors and fellow Marines.  I made a bad descision, but that descision should not have led to my dishonor.  I ask that you look at my service as a Marine, and not the single descision at the end, which led to this travesty of justice.

Thank You for your consideration in this matter, C_ N_ S_ (Applicant)”

Documentation

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

Copy of DD Form 214
Meritorious Mast dtd 990713
Meritorious Mast dtd 990809

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980123 - 980128	COG

Period of Service Under Review:

Date of Enlistment:  980129		Date of Discharge:  991215

Length of Service (years, months, days):

	Active:   01 10 17
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  69

Highest Rank:  LCpl			MOS:  2532

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (2)			Conduct:  4.4 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  OSDR, MM (2)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

990126:	Counseled for deficiencies in performance and conduct.  [(1) Drunk and disorderly conduct, (2) You are also counseled on the Marine Corps’ policy on homosexual conduct.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

991118:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial.  In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions.  The Applicant admitted guilt to the following violations of the UCMJ, Article 92: two violations of a lawful general order and Article 125, sodomy.  

991123:	SJA review determined the case sufficient in law and fact.  SJA comments: [The accused is charged with the following violations of the UCMJ:  Article 92: two specifications of violating a lawful general order; Article 125: forcible sodomy; and Article 134 disorderly conduct.  In his request, the accused acknowledges the following: (1) he is guilty of the Articles 92 and 125 offenses charged; (2) the maximum permissible punishment includes punitive discharge, confinement and other punishments; (3) he understands the elements of the offenses; and (4) he has viewed the evidence relating to the offenses charged.

991123:	GCMCA [CG 1MAW] determined that Applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991215 under other than honorable conditions in lieu of trial by court-martial (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.  On 19991118, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he was guilty of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant contends that his service was Honorable.  When the service of a member of the Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 an admission to multiple serious offenses.  The Applicant admitted to violating Article 92 with two specifications and violating Article 125, sodomy by force.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
18 Aug 95 until 31 August 2001.

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 by force.

C.  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.

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

E.  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