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USMC | DRB | 2001_Marine | MD01-00730
Original file (MD01-00730.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD01-00730

Applicant’s Request
The application for discharge review, received 010430, 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 designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011018. 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: GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MARCORSEPMAN Par. 6207.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues
1. (Propriety Issue) This former member avers that his overall conduct and performance markings warrant a fully honorable characterization of service.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's ltr to the Board
Applicant's Administrative Discharge Package (15 pages)
 Certificate of Superior Physical Fitness dated 10 Nov 98
 Applicant's ltr to the Board
Copy of DD Form 214
 Southwest Texas State University transcript
 Separation Authority ltr of 15 Jan 99
Staff Judge Advocate ltr of 15 Jan 99
 Applicant's W-2 Wage and Tax Statement 2000
 CO, Hdqtrs & Service Battalion's Recommendation for Separation dated 14 Jan 99
12 Service Record pages

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR(J)                961218 - 970105  COG
Period of Service Under Review :
Date of Enlistment: 970106               Date of Discharge: 990126
Length of Service (years, months, days):

          Active: 02 00 21
          Inactive: None

 Age at Entry: 18                          Years Contracted: 5
Education Level: 12                        AFQT: Not in Service Record

 Highest Rank: LCpl
Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.6 (4)              Conduct: 4.5 (4)
Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Sharpshooter Badge

Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ACT, authority: MARCORSEPMAN Par. 6207.

 Chronological Listing of Significant Service Events :

990104:  Applicant signed Article 32 Rights - suspected of homosexual conduct - whereby he waived his right to remain silent, requested to make a statement, waived right to present of a lawyer during interview.

 990104:  Applicant's Voluntary Statement made to M_ S_, Investigating Officer, concerning his homosexuality.
990108:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of homosexual conduct as evidenced by his statement that he engaged in homosexual acts.
990112:  Counseled for deficiencies in performance and conduct due to your misconduct due to homosexual acts committed while on active duty. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
990113:  Applicant advised of his rights and having consulted 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.
990114:  Commanding officer recommended discharge with a General (Under Honorable Conditions) by reason of homosexual conduct due to committing homosexual acts while on active duty. The factual basis for this recommendation was member's voluntarily admitted to committing homosexual acts and a sworn written statement that he engaged in homosexual conduct with another Marine and that he intends to continue to engage in homosexual conduct.

990115:  SJA review determined the case sufficient in law and fact.
990115:  GCMCA [CG, MCB, Camp Smedley D. Butler, Okinawa] directed the applicant's discharge with a general (under honorable conditions) by reason of homosexual conduct - act.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990126 with a General (Under Honorable Conditions) for homosexual conduct - act (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).
Issue 1. The applicant states that his overall conduct and performance markings warrant a fully honorable characterization of service. The Board disagrees. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Less than honorable conditions 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. T he applicant’s service was marred by an adverse counseling entry for the commission of homosexual acts. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. The Marine Corps Separation and Retirement Manual (MCO P1900.16E), effective 18 Aug 1995 until Present, Paragraph 6207, HOMOSEXUAL CONDUCT.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134, indecent acts.
C. 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.

D. 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.

E. 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 “ afls10.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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