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

ex-Pvt, USMC
Docket No. MD04-00926

Applicant’s Request

The application for discharge review was received on 20040512.  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 20041022.  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/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 12a, Date Entered AD This Period, should read:  “2002  04  22” vice “2002  06  03,” and Block 24, Character of Service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS” vice “GENERAL (UNDER HONORABLE CONDITIONS).”  The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Dear Sir or Ma’am,

I am writing this letter to you to request an upgrade of discharge from UNDER HONORABLE CONDITIONS to HONORABLE.  My hope in this letter is to indicate clearly that I rate an HONORABLE discharge for time served.  I was discharged with HONORABLE for misconduct (enc. 19 box 24 & 28) which you will see was later changed to UNDER HONORABLE CONDITIONS (enc. 20 box 5 item 24).  You will also notice that in Enc. 17 Par. 2 line 3 & 4 it is stated I would receive an OTHER THAN HONORABLE CONDITIONS discharge.  The mishandling of my case within the military justice system was horrible.  These events have affected me in a negative way with feelings and emotions me nor my family have yet to recover.  I also feel my discharge was not based on my single infraction but due to the Marine Corps not wanting to discharge me with an HONORABLE discharge for admission of homosexual acts.  (Marine Corps Separation Manual par. 6207) My intention here is not to discredit the Marine Corps or its policies, but to earn what I feel I truly deserve.  With review of all the documents enclosed I trust you will concur.

I have put all the enclosed documents in chronological order so that you can easily refer to the facts and events that led up to my discharge.  Enclosures 1 and 2 have been submitted to show that even in the short time that I was enlisted I was an outstanding Marine and student in my MOS and at combat training school.  From my experience, receiving a Meritorious Mast was a great honor and I don’t look lightly on receiving these.  I worked very hard to earn the recognition that was bestowed upon me.

I was stationed in Huntsville, Alabama for my MOS training.  During my time in school it was placed upon me to be the class leader.  From the time I arrived I was looked upon and responded as a leader among my peers.  I took this challenge and proceeded to do the best I could, and was selected as Marine of the Month for October 2003.  After a short time, the over whelming lifestyle of the Marine Corps became very difficult for me.  My superiors had noticed I was having difficulties within myself and was trying not to allow this to be seen or filter down through my fellow classmates.  I was sent to see the Chaplin on several occasions.  I was dismissed with what they called an adjustment disorder.  I graduated 2nd in my class and went on to my permanent duty station on Camp Pendleton.

After arriving on Camp Pendleton, I soon began to show more signs of depression and discomfort physically from constant migraines.  Enclosures 3-5 front and back is medical documentation that shows my physical and mental state prior to my UA status.  Highlighted on the front of each enclosure is the date in the left top corner.  Enc. 3 on the backside lines 9-15 and again lines 32-35 show my first visit to BAS.  I was given a prescription of Prozac for depression and Flexeral for the migraines.  I was informed by LT K_ that it would take 1 month for the Prozac to take effect.  Enc. 4 was my follow up, you will see in lines 10-12 they note my mental state again and in line 20 claim I still have an adjustment disorder.  On the backside of this enclosure you will note the side line statement that I was told to write stating I would not harm myself and Line 6 beside that written statement says "contact for safety.” Enc. 5 was my second follow up, lines 7-12 show no change in mental state and lines 16-20 show again adjustment disorder vs. depressive disorder, line 21 shows that I will be a consult for mental health.  On the backside of Enc. 5 lines 9-23 show my depression screening.  I was given the phone number to set up an appointment with mental health, when I placed the call they said they could not see me for 4 weeks.

At that point I felt as though they were waiting for the Prozac to get into my system and didn't really care about my mental anguish or emotional state.  Feeling as though I still needed to talk with someone I started to see a counselor.  I met with her for 3 weeks, twice a week before I decided to leave.  In my visits with her we would discuss the things I was feeling.  One of my most difficult things to discuss was my sexual orientation.  She told me that she would not have to report anything unless I stated actual events and dates.  At the time that it did come up to dates and locations she then proceeded to tell me that she would have to report my admission to my Battalion Commander.  She then had me sign a form stating that I knew she was going to have to report what she had known.  She asked for the name of my Bn. CO.  At that time it was Col. B_.  Three weeks had passed and I hadn’t heard anything from anyone.  I had become very edgy and paranoid about what was to come.  From the stories I had heard, things could get bad if the wrong people found out.  I was not ashamed of myself or my relationship but more afraid of any physical harm that may come.

On Dec. 15, 2002 I got on a plane and flew home to Florida to relieve myself of all the emotions and turmoil I had been feeling.  I felt as though the world was lifted from my shoulders and I could think clearly again.  I felt and still feel that the state of my mental well being was at great risk.  I didn’t feel as if anyone was taking me seriously and I was the only one who knew that my head wasn’t where it should have been.  Instead of feeling comfortable in hands of the people that were there to help me, I felt they where too busy making excuses and writing prescriptions.  I felt vulnerable.  I have never shown such a lack of clarity or ability to make decisions before.  I was worried that what was happening to me would affect me for the rest of my life.  I would not and will not allow anyone or anything take my mental health for granted.

During my absence I sought out and hired G_ M_, a military civilian attorney.  He explained what would happen and what the right procedure would be to return to my command.  Mr. M_ sent a letter to my command announcing my return and his representation prior to turning myself in at the local I-I office.  On Jan. 27, 2003 I was issued straggler’s orders to return to Pendleton (enc. 7).  I had been in UA status for 42 days.

One week after my return Mr. M_ sent another letter dated Feb. 4, 2003 announcing my sexual orientation on my behalf (enc. 6).  Previously Mr. M_ and I discussed not combining the notice of representation, my return and my sexuality in one letter because he felt they would have mistreated me.  Mr. M_’s law history has never seen the Marine Corps look lightly or respond fairly when situations of this matter have arose.  Out of fear for my safety I agreed and complied as directed.  Upon returning I was not put back with my unit in Ammo company, but instead was placed at the H&S Company barracks.  I was told that I would stay there because my legal work would be easily accomplished with me being closer to the Battalion.  Ammo Company was 16 miles away and they had no company driver and I didn’t have a vehicle.

Enclosure 8 is my original charge sheet showing I would receive a (box 14) Special Court Martial.  Enclosure 9 is the withdrawal of charge to a Summary Court Martial (par. 1 lines 2-3).  Enclosure 10 is a copy of the new charge sheet drawn up for Summary Court Martial (box 14).  Enclosures 11 & 12 are copies of record of trial by Summary Court Martial.  You will notice highlighted in box 6 of enc. 11 the date of the court martial was May 15, 2003, it had been 15 weeks and 4 days from my return that the proceedings had occurred.  Enclosure 12 has box 9 highlighted to show my sentencing: reduction in pay grade, forfeiture of pay and 40 days restriction.

Again, I was in a situation where my superiors had knowledge of the circumstances and I was living with the same fear as before I had left.  People in charge of me knew my sexual orientation and everything was being drug out.  Not knowing and having no one to explain what the status of the situation was, was terrible.  My mental and emotional state were constantly being tested and I was constantly on edge.  My command gave Mr. M_ the run around with phone calls and no return contact from letters or messages taken.  I had several conversations with 1st Lt H_ who was the acting legal officer in charge, he never once stated anything about any letters of sexual orientation or expediting the process so I could be discharged.  Enclosures 13 & 14 are copies of my restriction papers.  All 40 days were served.  At this point I had been back on base for 21 weeks, my court martial, punishment served and no notice of discharge from my command.  It was explained to me by my legal council that the turn over time for discharge is 2 weeks from admission of sexual orientation to discharge date.

Enclosure 15 is a denial for administrative discharge.  There is obvious conflict with the dates highlighted on this document.  The other lines highlighted in par. 2 lines 1 & 2 state that my conditional waiver was denied.  Enclosure 16 is a copy of the Pretrial Agreement or conditional waiver they are referencing.  Also noted on enc 15 par. 2 line 1 is “reviewed enclosures (1) through (5).” On enclosure 17 par 2 line 1 enclosures now become “(1) through (7).” The reason I bring this to your attention is after receiving the first letter denying discharge, Lt H_, 1st Sgt C_ and myself sat down to discuss what the Marine Corps intention was with me.  During this meeting it was explained that I would not be separated and I would remain in the H&S Company barracks for the remainder of my time on Pendleton.  Lt H_ expressed that he could not understand why I had been so persistent with wanting to get out.  I had shown great leadership skills and did above and beyond what was expected of me.  I was in a Sergeant's billet as the BEQ manager the entire time I was working in the company office.  I explained to him that my abilities and success in my position had nothing to do with the Marine Corps but a self-pride to be efficient at everything I do.  When I was assigned to that position, everything was in disarray.  I wanted to make my job easier for myself and the marine that took over the position behind me.  My diligence shown in the position was for me and not for recognition.  At that point, I explained AGAIN my sexual orientation and the relationship I had been in, for at that point 10 months.  I was granted leave 2 times before my court martial and 2 times after.  Each time I returned home it was to be with my girlfriend.  I admitted to sexual encounters for each visit.  Lt. H_ then proceeded to tell me that he was told by his command that the letters they’d received were not allowed to be acted upon.  Until that moment when I stated the circumstances, they were NOT going to discharge me.  He also stated he had no knowledge of Col.  B_ taking any action prior to Dec.  15, 2003.  I was then informed that he would seek the proper channels to deal with the circumstances at hand.  I do not recall the exact day of this meeting, but it was in the early part of September.

Later that day, I had another meeting with 1st Sgt.  C_.  He reassured me that he would see that things were done as quickly and quietly as possible.  He thanked me for all my hard work and extended his help in any future matters.  I was also approached by Sgt. Major J_, Bn Sgt. Maj., whom I had several casual conversations with and saw around the Bn. regularly.  He also accepted responsibility to see the matters be processed quickly.  He wished me luck in the future.  thanked me for my hard work and assured me he was not the type of man to look down on such things.  A few short weeks passed and I received my letter of discharge.

Enclosure 17 par 2 lines 2,3 & 4 state that I will be separated by charge of a serious offense, my characterization of service will be “UNDER OTHER THAN HONORABLE CONDITIONS” I received this letter Sept.  27, 2003 and was separated officially on Sept.  29, 2003.  As I brought to your attention previously, enc 15 par.  2 line I there is “reviewed enclosures (1) through (5).”  On enclosure 17 par 2 line 1 enclosures now become “(1) through (7).”  It is my belief that the additional documents contained information about my sexual orientation because of the nature of the conversations and the reporting of it from my C.O. Lt.  H_.

You will also note the continuing mishandling of my discharge on the DD214 forms.  Enclosuresl8 & 19, boxes 23, 24 & 28 are incorrect.  Enclosure 20 items 23 & 24 are the corrections to these mistakes.  I want to bring to your attention that my letter of Separation (enc 17, par 2 line 3 & 4) states under other than honorable, the DD214 (enc 19,box 24) shows Honorable and the correction form DD215 (enc 20 box 5 item 24) is to General under honorable.  I would like to point out that the duration of this process was a very long 35 weeks.  I feel as though the Marine Corps mishandled my case and has not given me what 1 feel I rightfully deserve.

I have enclosed (enc 21 & 22) two letters of recommendation from 1st Sgt C_, acting C.O.  and Sgt. T_,I worked and reported directly to both of these men daily.  I requested that they write these letters for me for the purpose of finding a job when I was discharged.  Please note the dates on the top right corner 11th and 18th of June 2003.  These were written when I was serving my restriction.  For a Marine in my situation, the compliments that these gentlemen have given me for my abilities will be the only good thing that has stood out in my mind from the entire lengthy process.  I have also enclosed (enc.23-26) on my behalf certificates of completion to show my education & volunteer work before the Marine Corps.  Enclosures 27 & 28 show the continuation to educate myself after the Marine Corps.  Enclosure 29 is a letter of acceptance to St. Petersburg College where I will continue my education for an A.S. as a Physical Therapist Assistant.

I would also like to state that I have not since my discharge committed any violations of the law and I have been in a job that is of great service to my community.

In closing, I would like to reiterate that I rate a discharge of HONORABLE due to all the facts and events I have disclosed.  I also would like to state that I feel I did my best while I served in the Marine Corps.  From the beginning I stood out for exceptional service and leadership and through all of my own discomfort and emotions I continued to do the same through the last 8 months of service.  I served my punishment for the UA status and now I feel as though the only reason I have a character discharge of General Under Honorable is do to my sexual orientation and not the efforts I did put forth.  I thank you for your time and patience with this matter.  Please remember that as it will only take you weeks to sort through my paperwork and make a decision, it will take me years to sort through my heartache and memories.  I request your sincere best effort.

Enclosures

Sincerely,

B_ M_ N_ (Applicant)”

Documentation

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

Meritorious Mast, dated September 10, 2002
Meritorious Mast, dated October 24, 2002
6 pages from Applicant’s medical record
Letter frm G_ M_, dated February 4, 2003
Straggler orders, dated January 27, 2003 (2 pages)
Charge sheet for Special Court Martial dated February 13, 2003
Withdrawal of charge letter, dated May 2, 2003
Charge sheet for Summary Court Martial, dated May 5, 2003
Record of Trial by Summary Court Martial, dated May 2, 2003 (4 pages)
Restriction papers, dated May 15, 2003 (3 pages)
Conditional waiver letter of denial, dated July 16, 2003
Copy of Pretrial agreement petition, dated April 3, 2003 (2 pages)
Notification of separation, dated September 26, 2003
DD Form 214 (Member 1 and 4)
DD Form 215, dated September 30, 2003
Letter of recommendation, dated June 11, 2003
Letter of recommendation, dated June 18, 2003
Certifications of education prior to service (4)
Certifications of education continued after service (2)
Letter of Acceptance to St. Petersburg College, dated March 19, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		020228 - 020421	COG

Period of Service Under Review:

Date of Enlistment:  020422		Date of Discharge:  030929

Length of Service (years, months, days):

	Active:    01  05  08	Does not exclude lost time
	Inactive:  None

Age at Entry:  25			Years Contracted:  4

Education Level:  12			AFQT:  65

Highest Rank:  PFC			MOS:  2311

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (2)			Conduct:  2.5 (3)

Military Decorations:  None

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

Days of Unauthorized Absence:  42

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

030303:	Applicant petitions for Pretrial Agreement stipulating no less than General Discharge.

030515:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: Absent from unit from 021216 to 030127 (42 days).
	Finding: to Charge I and the specification thereunder, guilty.
	Sentence: Forfeiture of $380.00, restriction for 40 days, reduced to E-1.
	CA action not found in service record.

030620:	Applicant’s petition denied.

030812:	SJA review determined the case sufficient in law and fact.

030813:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

030813:	Applicant advised of rights and having consulted 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.

030908:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was your summary court-martial on 030515 for violation of the UCMJ, Article 86: On 021216, wrongfully absent herself from 1st Supply Battalion until 030127.  

030926:	GCMCA [Commander, 1st Force Service Support Group] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030929 under other than honorable conditions for misconduct due to the commission of a serious offense (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.  The Applicant contends that the characterization of her discharge is a result of her “sexual orientation” and not a result of “the efforts [she] put forth.”  When the service of a member of the U.S. 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 a court-martial conviction for a violation of Article 86 of the UCMJ for a 42-day period of unauthorized absence.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The applicant was convicted at court-martial for 42 days in unauthorized absence.  The applicant's blatant violation of the UCMJ constituted a serious offense.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Separation Code, or the Narrative Reason for Separation would be inappropriate.  Relief denied.

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.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that her discharge was appropriate and that her evidence of post-service conduct was found not to mitigate the conduct for which she was discharged.  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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 September 2001 until Present). 

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 86, unauthorized absence for more than 30 days.

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