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Docket No. MD04-01102

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

 ex-Cpl, USMC
Docket No. MD04-01102

Applicant’s Request

The application for discharge review was received on 20040625.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to “DIS-INVOL Homosexuality Admission.”  The Applicant requests a personal appearance hearing discharge review before a traveling panel.  The Applicant listed Veterans of Foreign Wars as her representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDBR) does not travel, all hearings are held in the Washington DC area.  The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing.  Therefore, a documentary review was conducted, and the Applicant is not eligible for further review by this Board.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050524.
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 the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Discharge involuntarily - Homosexuality - Act (with administrative discharge board), authority: MARCORSEPMAN Par. 6207.3b(1).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “(This was with admin discharge board) at which time the veteran did not admit to thies [sic] charges.  And did not sign the DD 214.  
Veterans was charged that a LT, stated he seen the veteran jump into the lap of a civilian, at a ball game and kiss the said person.  At the hearing this person denied that this happened.  But do to the LT. statis all that was admitted from the LT after his statement. The LT was let loose from active duty and returned home.  At which time he could not be crossed examed.  The Board accepted his statement on written notice.”

Additional issues submitted by Applicant’s representative (VETERANS OF FOREIGN WARS):

2.  “Equity Issue(s):  The applicant requests that the equity of his discharge be considered in light of mitigating circumstances.

Statement:  In accordance with 32 CFR § 724, and SECNAVNST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant requests that the Board upgrade her discharge from Other Than Honorable conditions.  Her service was Outstanding until the alleged incident transpired that led to her discharge.  Despite her admission of homosexuality, she denies that the incident that led to her discharge ever took place and attest that there were other mitigating circumstances that led to her being accused and later discharged.   The applicant contends that her General discharge is inequitable in light of her Honorable service while on active duty, prior to the events surrounding her discharge.

The Veterans of Foreign Wars express purpose in providing this statement and any other submittals or evidence filed is t assist this applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724, and SECNAVNST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Statement in Support (3 pages)
Statement in Support from Veterans Service Officer

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		851001 - 860310	COG

Period of Service Under Review:

Date of Enlistment:  860311		Date of Discharge:  890728

Length of Service (years, months, days):

	Active:    03  04  18
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  92

Highest Rank:  Cpl			MOS:  5937

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (8)			Conduct:  4.2 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  RMB, COC, LOA (7)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Discharge involuntarily - Homosexuality - Admission (with administrative discharge board), authority: MARCORSEPMAN Par. 6207.3b(2).

Chronological Listing of Significant Service Events:

870811:	Counseled for deficiencies in performance and conduct.  [Serious consequences that my result from negligent failure to properly perform the duties of a student] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

870824:	NJP for violation of UCMJ, Article 86: On 0001, 870817 was absent from appointed place of duty, to wit: ARRC 3-87 class and did remain so absent until 0020, at StudCoA, ScolsBn, MCCES, MCAGCC.
	Award:  Forfeiture of $189.00 per month for 1 month, restriction for 14 days.  Appeal denied 870910.

880503:	Psychological consult comments:  Patient has revealed that she is a homosexual.  She is comfortable with her sexuality and denies any psychiatric symptomology.

880616:	Applicant notified of intended recommendation for discharge general under honorable conditions by reason of homosexuality.

880616:	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.

880620:	Commanding Officer recommended discharge general under honorable conditions by reason of homosexuality.

880803:	Commanding General, 3d Marine Air Wing, directed the Applicant be retained.

880830:	Counseled for deficiencies in performance and conduct.  [My failure to be at my appointed place of duty and setting a poor example as an NCO] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

890127:	Applicant's Voluntary Statement made to 1^st Lt K. W. M____ concerning her homosexuality. [Extracted from CO’s message dated 890314].

890314:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality as evidenced by her statement that she admitted to being a homosexual.

890314:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890314:	Commanding Officer recommended discharge under other than honorable conditions by reason of homosexuality due to admission.  The factual basis for this recommendation was the sworn statements made by 1^st Lt K. W. M___ and Cpl M.S. T___ on 890127.   Commanding Officer’s comment’s:  [Applicant] is being processed for administrative separation under other than honorable conditions based upon the sworn statements of 1stLt M_ and [Applicant].  By her own sworn admission, Cpl T_ frequented known homosexual establishments for the purpose of soliciting homosexual acts.  Based on this open and public pursuit of a homosexual lifestyle, the characterization of service as OTH is established

890501:	An Administrative Discharge Board, by unanimous vote, found that the allegations set forth in the notice of proposed separation are supported by a preponderance of evidence.

890622:	SJA review determined the case sufficient in law and fact.

890623:	Commanding General, 3d Marine Aircraft Wing directed the Applicant's discharge under other than honorable conditions by reason of homosexuality - admission.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890728 under other than honorable conditions for homosexuality - act (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).

Issues 1-2.  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 public homosexual act as determined by an administrative discharge board and witnessed by a commissioned officer.  The Applicant was also subject to nonjudicial punishment proceedings for a violation of Article 86 of the UCMJ.  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 Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Additionally, the summary of service clearly documents that a homosexual act was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief is not warranted.

The Applicant contends that she disputed the allegations against her at her administrative discharge board and that the allegations were accepted because of the lieutenant’s “statis.”  The statements provided by the Applicant do not refute the presumption of regularity in this case.  The administrative discharge board determined, based upon a preponderance of the evidence and by unanimous vote, that the Applicant committed a homosexual act.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her action.  Relief denied.

The following if provided for the edification of the Applicant.   The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if she desires further review of her case.

Pertinent Regulation/Law (at time of discharge)

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 
27 Jun 1989 until 17 August 1995, Paragraph 6207, HOMOSEXUALITY

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.