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USMC | DRB | 2000_Marine | MD00-00029
Original file (MD00-00029.rtf) Auto-classification: Denied


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

ex-LCpl, USMC
Docket No. MD00-00029

Applicant’s Request
The application for discharge review, received 991004, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a traveling panel closest to Denver, CO. The applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000525. 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 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

 1. My discharge can be upgraded to honorable discharge because
-I had a prior honorable D/C
-There was no verified record of homosexual acts prior/during service
-I did not exhibit any homosexual tendencies (A46.04) and still don't!
-There was no psychiatric exam performed as required (A46.06)
-Today under current standard I would received a well deserved fully Honorable Discharge
-My less than honorable discharge is no longer required today by the regulations governing the same reason for discharge.
-I had combact experience and a warning of exposure to chemical-biological
-This was my second enlistment.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of counseling dated February 26, 1992
Job/character reference dated August 15, 1998
Letter of recommendation August 12, 1998
Job/character reference
Character reference dated December 14, 1998
Character reference dated December 20, 1998
Letter of recommendation dated January 2, 1999
Character reference dated November 22, 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USAR              850703 - 860201  HON
 USMC             870406 - 910513  HON
          Inactive: USMCR(J)                870213 - 870405  COG

 Period of Service Under Review :
Date of Enlistment: 910514               Date of Discharge: 930903

 Length of Service (years, months, days):

         Active: 02 03 20
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4

 Education Level: 13                        AFQT: 46

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.0 (7)              Conduct: 4.0 (7)

 Military Decorations: None

 Unit/Campaign/Service Awards: COA, GCM, SSDR, NDSM, CAR, SASM, MM, KLM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Discharge involuntarily - Homosexuality-Act (with administrative discharge board), authority: MARCORSEPMAN Par. 6207.3b(1).

 Chronological Listing of Significant Service Events :

920824:  Counseled for deficiencies in performance and conduct. [Lack of leadership and bearing of an NCO as evidenced by your continual poor judgement in tasking Marines and your use of profanity.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
921202:  NJP for violation of UCMJ, Article 92 (2 spec):
 Specification 1: Violate CoO 1601.3d by having two visitors in his room after 2200, 30Oct92.
Specification 2: Violate CoO 1601.3d by having unauthorized visitors in his room without being logged in with the DNCO.
Violation of UCMJ, Article 86:
Specification: Leave appointed place of duty on 0505, 3Nov92, to wit: CO Pt formation without authority.
Violation of UCMJ, Article 134:
Specification: Wrongfully engage in sexual intercourse with someone, other than his wife, for money or compensation on 8Sep92.
Violation of UCMJ, Article 125:
Specification: Commit sodomy on 8Sep92.
Violation of UCMJ, Article 112A:
Specification: Wrongfully use controlled substances on 8Sep92.
Awarded forfeiture of $521.00 per month for 2 months, restriction for 60 days, reduced to LCPL. Forfeiture suspended for 6 months. Not appealed.
930902:  NJP for violation of UCMJ, Article 92:
 Specification: Disrespectful in language to a NCO on 1300, 30Aug93.
Awarded forfeiture of $541.00 per month for 2 months. Forfeiture suspended for 6 months. Not appealed.
930715:  CMC approved recommendation for the applicant's discharge under other than honorable conditions by reason of homosexuality acts and admission.

Discharge package missing.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 930903 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).

In the applicant’s issue, the Board found nothing to substantiate the applicant’s claims that he was not a homosexual and did not exhibit any homosexual tendencies. In the absence of such evidence the Board must presume that the Administrative Discharge Board fairly considered this issue and made the appropriate determination. The CMC approved his discharge by reason of homosexual acts and admission. Relief denied.

The applicant states that a psychiatric exam should have been performed. This is not the case, as regulations did not at the time of the member’s discharge, nor do they now, require a psychiatrist exam for self-admitted homosexuals.

The fact that the applicant had a prior honorable discharge, and had combat experience has no bearing on his discharge. He believes that under current regulations he would not rate this discharge. This is incorrect.

The applicant is reminded that he is eligible for a personal appearance hearing within 15 years from the date of discharge. . The applicant is encouraged to submit his discharge package and the Administrative Discharge Board results, if he has them, as a means of substantiating his issues. 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 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

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