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USMC | DRB | 1999_Marine | MD99-00917
Original file (MD99-00917.rtf) Auto-classification: Denied


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

ex-CPL, USMC
Docket No. MD99-00917

Applicant’s Request
The application for discharge review, received 990628, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 000424. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Discharge involuntarily - Homosexuality - Admission (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6207.3b(2).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The characterization on my discharge paper is a direct result of my homosexuality admission, and doesn't reflect the entire 24 months of my Marine Corps service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Ltr from applicant dtd 6/8/99
Copy of Eagle Scout award dtd Jun 29, 1982
Copy of Billy Mitchell Award dtd 30Sep83
Copy of DD Form 214 from Air Force
Copy of Honorable Discharge certificate from Air Force
Copy of AA from LA City College
Copy of performance summary dtd 9/17/93
Copy of performance summary dtd 5/20/94
Copy of performance summary dtd 7/7/95
Copy of performance summary dtd 7-2-96
Copy of performance summary dtd 7-10-97
Copy of performance summary dtd 7-2-98
Copy of recommended pro/cons dtd 890731
Copy of recommended pro/cons dtd 900131
Copy of recommended pro/cons dtd 91-01-24
Copy of meritorious promotion warrant to CPL
Copy of NCO Basis nonresident program completion certificate
Copy of 7 MCI completions
Copy of NCO Leadership School completion certificate
Copy of Certificate of Achievement from The MCA
Copy of completion certificate for Fiscal Accounting Course
Copy of completion certificate for Driver Improvement
Copy of Honorable Discharge from Air National Guard
Copy of award from civilian firm
Copy of college transcript

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USAF              840306 - 860707  HON
         Inactive: USMCR(J)                880723 - 881204  COG

 Period of Service Under Review :
Date of Enlistment: 881205               Date of Discharge: 910402

 Length of Service (years, months, days):

         Active: 02 03 28
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 12                        AFQT: 85

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (5)              Conduct: 4.7 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: OSR (AF), NDSM, SSDR, NUC, SASM (2), KLM, SSDR, Rifle Marksmanship Badge

Days of Unauthorized Absence: None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Discharge involuntarily - Homosexuality - Admission (administrative discharge board required but waived), authority: MARCORSEPMAN Par. 6207.3b(2).

 Chronological Listing of Significant Service Events :

910129:  NIS Report: Applicant was observed, by another service member, engaged in acts of sodomy with another service member. Attempt was made to interrogate applicant, wherein he elected to exercise his right to remain silent and requested legal counsel.
910216:  Applicant notified of intended recommendation for discharge and the least favorable characterization received may be under other than honorable conditions by reason of homosexuality as evidenced by his admission of engagement in homosexual acts.

910226:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
810307:  Additional notification for administrative discharge whereby applicant advised of the recommendation for discharge under other than honorable conditions because: (1) such homosexual conduct violated the customary Marine superior-subordinate relationships; and (2) that the acts were committed aboard a Marine Corps camp during time of war, and such misconduct had an adverse impact on discipline, good order or morale of the unit.
910312:  Applicant waived the Administrative Board, provided he is recommended for a general (under honorable condition) discharge. Applicant made the following statement: "Assuming that the allegations concerning my actions are completely true, they were nonetheless private, consensual acts that did not apparently effect the good order or discipline of the Marine Corps. I have a good record. I was promoted meritoriously to Corporal with just shy of a year in the Marines. I was the unit Marine of the Quarter for the fourth quarter of 1989. I have had above 90 percent averages at the two Marine Corps schools I've attended. While a Corporal, I have maintained average 4.7/4.8 proficiency/conduct marks. While participating in off-duty education, every grade received in a course taken since joining the corps has been an A. I am the 7 th MEB's Drug Exemption NCO. I have never had non-judicial punishment. The foregoing facts coupled with the time and effort the government saves, argue for a general discharge."

910314:  SJA review determined the case sufficient in law and fact.

910315:  GCMCA [CG, I MEF] accepted applicant's request to waive the admin board and directed the applicant's discharge under honorable conditions (general) by reason of homosexuality because of homosexual conduct.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910402 with an under honorable conditions (general) for homosexuality - 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).

Member’s issue implies that characterization of his discharge should have been made based on his entire period of service, i.e. type warranted by service record. Per reference (a), an under other than honorable characterization of discharge may be awarded when the homosexual conduct involved an aggravating factor (e.g. homosexual act committed aboard a military installation). Member was processed for administrative separation based on homosexual conduct with an aggravating factor. Consequently, his waiver of an administrative hearing upon the condition that he receive a general under honorable conditions characterization of service was proper and equitable. Relief denied.
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 5420.174C 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, DC 20310-1809

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
                  Washington Navy Yard
                  720 Kennon St SE Rm 309
                  Washington, DC 20374-5023       


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