Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD11-00633

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20110107
Characterization of Service Received:  
Narrative Reason for Discharge:  HOMOSEXUAL ADMISSION
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19940707 - 19950611  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19950612	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  19971223	Highest Rank:  
Length of Service:    Year(s)    Month(s)  12  Day(s)
Education Level:  	AFQT:  38
MOS:  0151
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   MM

Periods of UA/CONF:  

NJP:  

- 19971029:	Article 81 (Conspired with Cpl N_ to commit larceny of U.S. Currency of a value of about $2,101.72)
	Awarded: (to E-2)    Suspended:  

- 19971216:	Article  (General article, 2 specifications)
	Specification 1: On or about 0200 19971123 and 2200 19971211 break said restriction
	Specification 2: Wrongfully solicit SNM to violate the UCMJ on 19971212
	Awarded: (to E-1)    Suspended:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 19971029:	For conspiring to commit larceny of U.S. currency.

- 19971125:	For your use of poor judgment from May 1997 to November 1997 by unlawfully collecting BAQ wife entitlements, which you were not entitled to in the amount of $2,271.94.  You were legally divorced on 29 May 1997, and you failed to report this to your unit’s personnel admin section.

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual (MCO P1900.16E), effective 18 August 1995 until 
31 August 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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

Applicant’s Issues

1.	Applicant contends his discharge was improper as he had been in the medical board process for several months.
2.	Applicant contends his discharge was improper/inequitable as he agreed to administrative separation only after months of harassment/hazing and being blacklisted in his command.
3.	Applicant contends his discharge was improper/inequitable as his military legal counsel advised him to choose administrative separation versus a possible conviction at trial by court-martial.  

Decision

Date:  20110915		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified two decisional issues for the Board’s consideration.  Although the Applicant’s service records were incomplete, the Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 retention counseling warnings for conspiring to commit larceny of U.S. currency (29 Oct 1997) and using poor judgment from May-Nov 1997 in collecting BAQ wife entitlement after legal divorce on 29 May 1997 (25 Nov 1997).  The record also revealed   for  of the Uniform Code of Military Justice (UCMJ): Article 81 (Conspiracy, to commit larceny of U.S. currency valued at $2101.72 with a fellow Marine) and Article 134 (General Article, 2 specifications: restriction breaking, 0200 on 23 Nov 1997 and 2200 on 11 Dec 1997; soliciting another to commit an offense, on 12 Dec 1997).  The record also revealed that the Applicant, after separation and divorce from his wife, lived with a fellow Marine (Cpl) as roommates.  At some point, the roommate was suspected of a series of frauds and theft conducted aboard base and investigated by the Naval Criminal Investigative Service (NCIS).  In the course of the investigation, evidence collected from the household, to include letters and notes, revealed the Applicant and roommate shared an intimate relationship.  While being questioned by NCIS, the Applicant admitted to homosexual conduct and that he had a live-in partner.  After review of the evidence, the Applicant’s command processed him for administrative separation, which was mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  When notified of administrative separation processing using the  procedure during Dec 1997, the Applicant exercised his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative separation board.  Additionally, the records did not reflect that the Applicant submitted statements or any other evidence to rebut the presumption that he engaged in, attempted to engage in, had a propensity to engage in, or intended to engage in homosexual acts.  The Applicant was separated from the Marine Corps on 23 Dec 1997 with a General (Under Honorable Conditions) discharge due to Homosexual Admission.

:  (Nondecisional) The Applicant contends his discharge was improper as he had been in the medical board process for several months.  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable as he agreed to administrative separation only after months of harassment/hazing and being blacklisted in his command.  The NDRB is not an investigative body and allegations of command legal or administrative impropriety should 

be made to the Naval Inspector General’s Office.  Allegations notwithstanding, per the MARCORSEPMAN that was in effect at the time of the Applicant’s discharge, the Applicant’s in-service statement to NCIS investigators stating that he engaged in homosexual conduct and had a live-in partner, plus the evidence collected from the Applicant’s household that corroborated his statements, created a rebuttable presumption that he engaged in, or had the propensity to engage in homosexual acts.  Additionally, the records did not contain any documentation to reflect that the Applicant submitted evidence to rebut this presumption prior to his discharge.  Normally, an inquiry is initiated following a service member’s homosexual admission to determine whether the statement is credible and was not made for the purpose of avoiding further military service.  Accordingly, and with no evidence in the records to rebut the presumption of regularity prior to his discharge, nor substantial, credible evidence submitted by the Applicant to the Board to question the presumption, the Board found that the Applicant’s discharge was proper and equitable per the orders and directives in effect at the time of his separation.  Therefore, the Board determined this issue did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable as his military legal counsel advised him to choose administrative separation versus a possible conviction at trial by courts-martial.  The NDRB conducted a detailed review of the Applicant’s service records to determine whether the Applicant’s discharge met the pertinent standards of equity and propriety.  The Applicant’s record indicates he received commanding officer NJP on 29 Oct 1997 for conspiracy (UCMJ Article 81) to commit larceny of U.S. currency ($2101.72) by giving a fellow Marine (his roommate) a copy of his marriage license knowing that the Marine would use the document to defraud the government via entitlements.  The Applicant, in his application for discharge review to the NDRB, contends that his roommate stole the marriage license without his knowledge.  However, the records reveal that after review of all the available evidence at the time of the misconduct, the Applicant’s commanding officer found via the preponderance of the evidence that the Applicant was culpable.  The Applicant submitted a non-verified (lacking notary seal/stamp or other official markings) copy of a written statement (dtd 19 Nov 1997) made by the Applicant’s then roommate in which he recanted his previous testimony in which he stated he was a homosexual and claimed to have a relationship with the Applicant.  However, there was no mention of the conspiracy to commit larceny offense from Oct 1997.  On 25 Nov 1997, the Applicant received a 6105 retention warning for use of poor judgment in continuing to receive BAQ wife entitlements from May to November 1997 even though their divorce had been finalized on 29 May 1997.  Three weeks later, on 16 Dec 1997, the Applicant again received NJP for two specifications of violating UCMJ Article 134 (breaking restriction twice and wrongfully soliciting another Marine to violate the UCMJ in lying to cover up the Applicant’s breaking of restriction).

The Applicant’s command could have referred him to trial by courts-martial for the commission of a serious offense (UCMJ Articles 81, 121, and 134), which could have resulted in a felony conviction, confinement for up to six months and a Bad Conduct Discharge if awarded at trial by special court-martial.  His command chose not to try him by court-martial, but instead to use administrative procedures (6105 retention warning and NJP) to handle the misconduct.  The record does not indicate the Applicant was ever referred for trial by court-martial.  Further, the record does reflect that the Applicant was processed for administrative separation due to his homosexual admission, which was made in the course of an NCIS investigation of his roommate for fraud and theft.  After exercising his right to consult with qualified legal counsel, the Applicant chose to waive his right to submit a written statement in rebuttal to his proposed separation and waived his right to an administrative separation board.  After thorough examination and review of the Applicant’s records, the Board found the Applicant’s issue to be without merit and did not provide a basis for which relief could be granted.

However, per a 20 Sep 2011 Under Secretary of Defense (Personnel and Readiness) memo, “service discharge review boards should normally grant requests to change the narrative reason for a discharge.”  This memo refers to “Don’t Ask Don’t Tell” discharges and further directs that the narrative reason for separation should change to “Secretarial Authority.”  Partial relief granted.  Full relief to Honorable was not granted due to the Applicant’s repetitive and serious misconduct.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and  record entries, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water