Author: CAP
Last saved by: shirley.robertson
Company: NCPB

Docket No. MD04-00796

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

ex-PFC, USMCR
Docket No. MD04-00796

Applicant’s Request

The application for discharge review was received on 20040413.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Convenience of the gov.”  The Applicant requested a documentary record 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 20041015.  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 and reason for discharge shall not change.  The discharge shall remain:  UNCHARACTERIZED/HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The discharge is improper because the applicant served over 180 days active duty.  Applicant’s pro/con marks are good and applicant has had no bad conduct issues of any type.

reenlistment code to change from RE4 to RE1.

Applicant was unaware upon entry to the service that a homosexual service member must remain celibate and nonsexual for the term of the enlistment contract and can have never engage in homosexual acts.  Applicant was never explained that this is what “Don’t ask don’t tell” policy really intended.  Applicant learned of the clearance investigation that would be conducted for the secrete clearance and refused to become a securety breach by having to lie or become the victim of potential blackmail.  With this unfair situation facing the applicant, the applicant had only one choice and that would be to tell the truth.  The applicant reported that he has and would engage in homosexual acts on his personal and private time away from the base and military personnel.  The applicant acted in accord with the teaching of the United States Marine Corps honor, courage, and commitment philosophy.  I would at moments notice answer the call of my country to serve most proudly.  I just do not want the burden of having to lie to do so.”

Documentation

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

Applicant’s DD Form 214
Memorandum from the Assistant Secretary of Defense (Personnel and Readiness),   
   undated DoD Policy on Homosexual Conduct, Training Plan (20 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (J)		950213		COG
	Active:   USMC		950214 - 950315	ELS

Period of Service Under Review:

Date of Enlistment:  001107		Date of Discharge:  010913

Length of Service (years, months, days):

	Active:    00  05  05
	Inactive:  00  05  02

Age at Entry:  29			Years Contracted:  8

Education Level:  8			AFQT:  47

Highest Rank:  PFC			MOS:  9900

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (2)			Conduct:  4.2 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  REB

Days of Unauthorized Absence:  None

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

UNCHARACTERIZED/HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207.

Chronological Listing of Significant Service Events:

010409:	Applicant reported for initial tour of active duty for training.

010720:	Applicant's Voluntary Statement. No further information found in service record.  [Date extracted from Commanding Officer’s letter dated 010806.]

010731:	Applicant notified of intended recommendation for uncharacterized characterization by reason of your demonstrated propensity or intent to engage in homosexual acts.

010731:	Applicant advised of 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 and to submit a statement.  (Statement not found in service record.

010806:	Commanding officer recommended uncharacterized characterization by reason of homosexual admission.  The factual basis for this recommendation was Applicant’s self admission of homosexual conduct which demonstrates a propensity or intent to engage in homosexual acts.  

010806:	Applicant requested voluntary leave awaiting administrative separation.

010808:	Applicant directed to voluntary leave.

010826:	SJA review determined the case sufficient in law and fact.

010907:	GCMCA [Commanding General, Marine Corps Base, Camp Lejeune, NC] directed the Applicant's discharge with an uncharacterized by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was separated from the service on 20010913 with an uncharacterized discharge 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:  By regulation, members notified of discharge proceedings within the first 180 days of continuous active duty are given a service characterization of  “Uncharacterized” unless there were unusual circumstances regarding performance or conduct, which would merit an “honorable” characterization.  The Applicant’s service record did not contain any unusual circumstances during his short time on active duty to warrant a change of discharge to “honorable.”  The Applicant was notified of his commands intent to separate him from the service by reason of homosexual conduct on 31 July 2001, which was just shy of four months (120 days) of continuous active duty.  Relief denied.  

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, civilian employment, educational pursuits, etc., an uncharacterized separation shall be considered the equivalent of an honorable or general (under honorable conditions) discharge.

The Applicant’s discharge characterization accurately reflects his service to his 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 is evident during the Applicant’s enlistment.  Homosexual conduct is grounds for separation from the Marine Corps.  A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts.  The Applicant voluntarily admitted his propensity toward homosexuality.  He was given an opportunity to rebut the presumption of the likelihood to engage in homosexual acts, which he refused to avail himself.  Other than the Applicant’s statement, there is no evidence that he was not aware of, and understood, departmental policy regarding the enlistment and retention of self-admitted homosexuals.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  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.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  This issue does not serve to provide a foundation upon which the Board can grant relief.

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.