Author: CAP
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Docket No. MD02-01239

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

 ex-LCpl, USMC
Docket No. MD02-01239

Applicant’s Request

The application for discharge review, received 020828, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested 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 030602.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MARCORSEPMAN Par. 6207.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was inequitable because it was based on one isolated incident which was misunderstood and taken out of context.  I am not a homosexual, it was common knowledge that Sgt N_ was my boyfriend and now my fiancée.  The incident was merely a joke and was not an act of homosexuality.  

     This type of act has never occurred or has occurred other than that one night in which all parties involved had too much to drink.  My records and references clear show that I was highly regarded by my peers and superiors and that they have nothing but positive remarks during my term of service.  I realize that what I did was wrong but it was not my intention for that act to be regarded as homosexual.  It was one night where everyone had too much to drink and it was meant only as a joke.  I hope that you can understand my positions and chang my discharge to honorable.  Thank you for your time.

Documentation

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

Copy of DD Form 214
6 pages from Applicant’s Service Record Book
Stars & Stripes Newspaper Articles on court-martial charges of sex crimes (6 pages)
Administrative Board Finding, including character references (22 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980428 - 980608	COG

Period of Service Under Review:

Date of Enlistment:  980609		Date of Discharge:  000518

Length of Service (years, months, days):

	Active:  01  11  10
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  67

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5)		Conduct:  4.3 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, LoA (4), Rifle Expert Badge 

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MARCORSEPMAN Par. 6207.

Chronological Listing of Significant Service Events:

990209:	Applicant acknowledged eligibility but not recommended for promotion to LCpl for the month of Mar due to lack of judgment and maturity.

000207:	Preliminary inquiry into alleged confession of homosexual action by Applicant.  Findings and recommendation of inquiry contained in service record.

000314:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexual conduct as evidenced by her confession of homosexual conduct and homosexual acts with SA Y_ C. D_, USN, as evidenced by 1^stLT K. R. L_’s investigation of 7 Feb 00.

000320:	Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000320:	Commanding Officer, Marine Wing Support Squadron 172 recommended discharge with an Under Other Than Honorable Conditions by reason of homosexual conduct due to homosexual acts.  The factual basis for this recommendation was her repeated homosexual acts/conduct which occurred in public view aboard a military installation, and the homosexual relationship with Seaman Apprentice Y_ C. D_, U.S. Navy, under aggravating circumstances that have an adverse impact on discipline, good order, and morale, as evidenced by the Preliminary Inquiry letter of 1stLt L_ dated 7 Feb 00.  By her actions, she has demonstrated that she has no potential for further military service.  

000420:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed homosexual conduct by acts, and that such acts warranted separation, and recommended discharge under honorable conditions (general).

000504:	SJA review determined the case sufficient in law and fact.

000509:	GCMCA [CG, 1^ST MAW] advised the Commandant that Applicant’s discharge was directed under honorable conditions (general) by reason of homosexual conduct - act.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 000518 under honorable conditions (general) for homosexual conduct - act (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.  A characterization of service of under honorable conditions (general) 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 her admission of homosexual acts.  The record is devoid of evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied. 

The Applicant’s discharge characterization accurately reflects her service to her country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  Additionally, 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 the service.  Relief denied.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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 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 92, failure to obey a lawful general order.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A5900/A9235/A9217/A9221