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Docket No. MD04-00379

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

ex-LCpl, USMC
Docket No. MD04-00379

Applicant’s Request

The application for discharge review was received on 20031229.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

Issue 1:  “Based upon my military records I feel that deserved to receive an honorable discharge.  During my 2 years 4 months and 27 days of service in the United States Marine Corps I feel that I did put forth one houndred and ten percent effort.  I always passed and often achieved superior physical fitness awards, scored expert rifle 2^nd award, and expert pistol.  I had all promotion points for E-4 and just needed one more month to be promoted.  I completed all required MCI’s, and held a … security clearance while guarding … in Quantico, VA … and also the … in Washington DC.  I also maintained high pros and conduct marks, and was within a few months of the Good Conduct Medal.
Based on the above information I ask that you upgrade my discharge to Honorable.  I am currently persuing a career in the medical field and would like to say that experience in the United States Military was Honorable when interviewed by future employers.”

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		940617 - 950606	COG

Period of Service Under Review:

Date of Enlistment:  950607		Date of Discharge:  971103

Length of Service (years, months, days):

	Active:  02  04  27	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  50

Highest Rank:  LCpl  (5811)

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.6 (7)		Conduct:  4.5 (7)

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, JMUC, PSB&C 

Days of Unauthorized Absence:  None 

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

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

Chronological Listing of Significant Service Events:

970924:	Counseled for deficiencies in performance and conduct.  [Failure to obey Marine Corps and Squadron Orders that prohibits drinking beverages while under the legal drinking age of 21.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

970907:	Applicant's Voluntary Statement made to junior Marine concerning his bisexuality, while soliciting him to participate in oral sex.

971003:	Applicant notified of intended recommendation for discharge as general (under honorable conditions) by reason of homosexual conduct as evidenced by admitted to being a homosexual.

971007:	Applicant advised of his rights and having elected not to consult 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.

971008:	Commanding officer recommended discharge as general (under honorable conditions) by reason of homosexual conduct due to homosexual admission.  The factual basis for this recommendation was the Applicant’s statement that he was a homosexual and his solicitation of another male Marine to commit a homosexual act.

971020:	SJA review determined the case sufficient in law and fact.

971020:	GCMCA [Commander, Marine Corps Air Bases, Eastern Area] directed the Applicant's discharge as general (under honorable conditions) by reason of homosexual conduct due to homosexual admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971103 with a general (under honorable conditions) service characterization for homosexual conduct - 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).

Issue 1.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity is evident 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 not warranted.

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering the Applicant’s discharge proper and equitable.   Relief denied.  

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 additional documentation to support any claims of post-service accomplishments at that time.  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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  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.

D.  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.