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

Docket No. MD04-00828

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

ex-LCpl, USMC
Docket No. MD04-00828

Applicant’s Request

The application for discharge review was received on 20040422.  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 20041008.  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:

1.  “Dear Board

Hi there im writing you today to ask you to please upgrade my discharge from under honorable conditions to honorable.  While i was in the marine corps i was never in any type of trouble i was never demoted or had a loss of pay i left the marine corps in good standing for a short time i was engaged in a alternative life style.  And for my safety and for the safety of others i went to my command and told them i was engaged in a alternative life style and asked to be discharged and i was a few weeks later even thow i do not wear the uniform anymore im still serving my country since 5/19/2002 i have been a federal security screener for the transportation security administration department of homeland security.  Its my job to help keep airways safe for us all to travel and im still a united states marine at heart once a marine always a marine i thank you for your time and i hope and pray you will grant me with and honorable discharge thanks again for your time hope to hear from you soon.

Cordially,
(Signed)
R_ C. G_ (Applicant)
Former united states marine”

Documentation

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

Applicant’s DD Form 214
Job reference, undated

PART II - SUMMARY OF SERVICE

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

	Active:   			None			HON
	Inactive: USMCR (J)		980226 - 980525	COG

Period of Service Under Review:

Date of Enlistment:  980526		Date of Discharge:  000630

Length of Service (years, months, days):

	Active:    02  01  05
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (6)			Conduct:  4.2 (6)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, LoA, RMB

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:

991229:	Applicant informed eligible but not recommended for promotion to Corporal for the promotion period Jan/Feb/Mar00 due to lack of initiative, lack of maturity.

000517:	Applicant makes a written and signed statement that he is a homosexual and desires to be separated from the Marine Corps.

000517:	Findings and recommendation of Investigating officer:  The Applicant “was given an opportunity to rebut his statement concerning his propensity to engage in homosexual activity.”  However, he “indicated he was frustrated with living two separate lifestyles and felt that it would be in his and the best interest of the Marine Corps if he revealed his sexual orientation and if he was administratively separated.”  Investigating officer recommended the Applicant for administrative separation with a General (Under Honorable Conditions) characterization.  

000601	Commanding Officer “concurs with the findings and recommended disposition of the Investigating officer.”

000606:	Applicant notified of intended recommendation for discharge under honorable conditions by reason of homosexual conduct as evidenced by his statement that he admitted to being a homosexual.

000612:	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.

000620:	Commanding Officer recommended discharge with an honorable by reason of homosexual conduct due to admission.  The factual basis for this recommendation was your admission through your written statement and results of a command inquiry.

000623:	SJA review determined the case sufficient in law and fact.

000626:	GCMCA [Commander, 1^st Marine Division (Rein)] directed the Applicant's discharge general (under honorable conditions) by reason of homosexual conduct - admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000630 with a general (under honorable conditions) 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 our 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.  The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstance of military service.  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 the member engages in or will engage in homosexual acts.  The Applicant’s record is marred by a page eleven counseling, which stipulated he was ineligible for promotion to Corporal because of a “lack of initiative,” and a “lack of maturity.”  Additionally, the Applicant first sought separation from the Marine Corps under Conscientious Objector status before “revealing his true sexual orientation.”  The separation authority, who is higher in the chain of command and is the final determinant for type and characterization of discharge, directed separation of the Applicant with a general (under honorable conditions) discharge. The separation authority’s action was proper and equitable.  The Board presumes the preponderance of evidence available to the separation authority supported the reason for discharge. The Applicant failed to provide sufficient documentation that demonstrates his administrative separation was improper or inequitable.  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 Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 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.