Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD06-00331

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMC
Docket No. MD06-00331

Applicant’s Request

The application for discharge review was received on 20051212.  The Applicant requests the Narrative Reason for Separation be changed to “misconduct.”  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061025.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, impropriety in the narrative reason for the Applicant’s discharge was discovered by the NDRB.  The Board’s vote was unanimous that the reason for discharge shall change to:  HONORABLE/HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207, Separation Code “HRB1.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached letter to the Board:

“I belive a reason for an upgrade or change is it does not reflect my lifestyle, nor will it ever.  Other issues that I would like to be addressed, is my separation code to be changed to a misconduct.  Also my reentry code to be changed to one that would help me for re-enlistment.”

“To Whom-It May Concern:

My name is J_ S_ (Applicant), I am requesting your assistance with me being eligible for re-enlistment into the armed forces.  In order for me to be allowed for re-enlistment my re-entry code would have to be changed.  Also, my separation code and my narrative reason for separation and anything else that would keep me from reenlistment.  The reason I believe I need these codes changed is from recently speaking with military recruiters about possible rentry into the military.

During my initial enlistment into the Marine Corps, I made a mistake that has followed me to this date.  I was much younger then and did not understand the effects what this mistake would cause.  At the time I stated that I was bi-sexual .  I was looking for only one thing and that was to return home.  I was dealing with the death of my father and a foot injury that removed me from my unit.  I was very confused at that time and I did not make a rational decision.  My statement regarding being bi-sexual was incorrect and does not reflect my true lifestyle.  It was a statement to expedite my return home to help comfort my mother.

Also, during my initial enlistment, I did make some good decisions.  I worked hard to be the few and the proud, and had an outstanding PFT score, graduated as honor graduate out of W.P.N.S. school, received a meritorious promotion and a certificate of commendation.

Since my discharge from the Marine Corps I have struggled with my action, but I have strived to make my life meaningful and have been continually employed in a full time basis and been an active member of the church.  The shock of my father’s death is behind me and I have learned to live with those types of things in a mature manner and wish to re-enter into the military at a time when our country is engaged in a war on terrorism.  I believe that I can contribute in a positive manner and I can only ask that I be allowed the chance to prove that I am a much different person.

Respectfully,
J_ S_ (Applicant)
[signed]”

Applicant’s Remarks:  (Taken from the DD Form 293.)

“I J_ S_ (Applicant), is mailing you this form and sending you these letter’s, cause I want a second chance.
Please review my case carefully and allow me this chance to serve my country when it is in need.
Thank you
J_ S_ (Applicant)”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Character Reference ltr from T_ Z. C_, dtd June 11, 2005
Character Reference ltr from D_ B_, dtd June 1, 2005
Character Reference ltr from S_ J. M_, dtd September 2, 2004
HQMC letter to The Honorable D_ D_, Member, U.S. House of Representatives regarding Applicant’s re-enlistment code, dtd July 20, 2004
Applicant’s Certificate of Commendation, dtd April 30, 1998
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR (DEP)	19971112 - 19971117	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19971118		Date of Discharge:  19990924

Length of Service (years, months, days):

Active:    01  10  07
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  45

Highest Rank:  LCpl				MOS:  0351

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (5)				Conduct:  4.1 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksman Badge, Certificate of Commendation, Letter of Appreciation

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

HONORABLE/HOMOSEXUAL ACT, authority: MARCORSEPMAN Par. 6207.

Chronological Listing of Significant Service Events:

990823:	Applicant informs 1stSgt M_ G_, Jr., USMC, Company First Sergeant that Applicant told the Regimental Chaplain on 990820 that Applicant was bi-sexual.
	[Extracted from 1stSgt M_ G_, Jr., USMC statement dtd 990831.]

990823: 	Medical entry:  Regimental Aid Station, (not signed, caregiver not identified):  Patient (Applicant) was sent here by his unit 1^st Sergeant for medical evaluation after he revealed himself as “bisexual”.  Patient admitted he engaged in bisexual interaction but not with his friends in the Marine Corps.
	Patient is alert, oriented and cooperative.  He is in clean military uniform.  Good eye contact.  Normal speech.  Thought process is logic and linear.  Mood is “better” that he made it to an open but “worried” of what will happen to him and military career.  Denies suicidal or homicidal ideation/thoughts.

990830:	Commanding Officer, 3^rd Marines (Rein), appoints Major B_ K. B_ to conduct preliminary inquiry into the circumstances surrounding Applicant’s homosexual statement.

990831:	Applicant acknowledges to Major B_ K. B_ that Applicant did tell the Regimental Chaplain and 1stSgt G_ that the Applicant was bi-sexual; that Applicant stood by those statements; and that Applicant did have a propensity or intent to engage in homosexual acts. 

990907:	Major B_ K. B_ submits report of preliminary inquiry.  Finds that Applicant voluntarily told 1stSgt G_ that Applicant was bi-sexual.  Opines that Applicant was sincere and is likely to engage in homosexual conduct.  Recommends administrative separation.

990913:	Applicant notified of intended recommendation for discharge by reason of homosexual conduct with a characterization of service as honorable.  Applicant informed the least favorable character of service possible was as general (under honorable conditions).  

990913:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990913:	Commanding Officer, 3d Marines (Rein), Marine Corps Base Hawaii Kaneohe Bay, Hawaii, recommended Applicant’s discharge by reason of homosexual conduct with a characterization of service as honorable.  The factual basis for this recommendation was statement that demonstrates a propensity or intent to engage in homosexual acts.  Commanding Officer’s comments:  “The respondent’s actions clearly indicate unsuitability for future military service; therefore, I recommend that the Respondent be expeditiously discharge.”

990915:	SJA review determined the case sufficient in law and fact.

990916:	GCMCA, Commanding General, Marine Corps Base Hawaii, directed the Applicant's discharge by reason of homosexual conduct with a characterization of service as honorable.

990917:	Applicant found medically qualified for separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990924 by reason of homosexual conduct - act (A) with a service characterization of honorable.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was equitable (B) but improper in regards to the narrative reason for discharge (C).  

The Applicant contends that he was not and is not a homosexual and admitted to being a bi-sexual for the sole purpose of obtaining a discharge from the Marine Corps.  Per reference (A), the Applicant’s in-service statement to his First Sergeant that he was a bi-sexual created a rebuttable presumption that he engaged in, attempted to engage in, had the propensity to engage in, or intends to engage in homosexual acts.  The Applicant did not submit any evidence to rebut this presumption prior to his discharge.  The inquiry initiated following the Applicant’s admission determined that his statement was sincere.  The statement contained in the application that the Applicant’s admission was due to being younger and not understanding the effects of this “mistake” was found to be insufficient justification to warrant a change in the reason for discharge to misconduct.  However, the Board did determine that Applicant was notified of the recommendation for discharge on the basis of a homosexual statement, not a homosexual act; and further determined that the evidence in the record was insufficient to support a determination that the Applicant had engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts in violation of applicable law or policy.  Therefore, the Board concluded that the Applicant’s narrative reason for separation should have been for homosexual admission, not homosexual act.  Partial relief on this basis is granted.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  Therefore, the NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity. 

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.

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