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USMC | DRB | 2003_Marine | MD03-00460
Original file (MD03-00460.rtf) Auto-classification: Denied


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

ex-Sgt, USMC
Docket No. MD03-00460

Applicant’s Request
The application for discharge review was received on 20030124. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests 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 20031205. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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-Act (with administrative discharge board), authority: MARCORSEPMAN Par. 6207.3b(1).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

“1. I, M.R. R_, was discharged with a general instead of honorable discharge because of a homosexual incident that went unreported. I did report being assaulted by PFC K_ and she was demoted by UCMJ and discharged with a honorable discharge stating substance abuse, not homosexuality. My company and the base SGMJ were knowledgeable of the attacks by PFC K_ on my person, but had arranged to handle it in house between company 1 st Sgts. I was victimized numerous times by PFC K_ and she was allowed to ruin my career of 12+ years. I request a review of my records and upgrade my discharge in accordance with current policy and regulation.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
151 pages from Applicant’s service records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              790906 – 841107  HON
 841108 - 890426  HON
          Inactive: USMCR(J)                790517 - 790905  COG

 Period of Service Under Review :
Date of Enlistment:     890427   Date of Discharge: 920220

 Length of Service (years, months, days):

         Active: 02 09 25
         Inactive: None

 Age at Entry: 18                          Years Contracted: 3

 Education Level: 12                        AFQT: 56

 Highest Rank: Sgt

 Final Enlisted Performance Evaluation Averages (number of marks):

 Fitness reports were available for review through 891031
Military Decorations: None

 Unit/Campaign/Service Awards: LoC, MM (2), NAM, GCM (w/3*)

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

900315:  Counseled for deficiencies in performance and conduct. [Alcohol related incident: DWI with a blood alcohol content of .11. Assigned to Level II treatment program.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

900323:  Statement in rebuttal to above Page 11 counseling submitted.

910411:  Applicant's voluntary statement made to CID, MCB Camp S.D. Butler. Applicant stated that during December (1990) she kissed PFC K_ and offered to have sex with her. Applicant also stated that she wrote letters to PFC K_ , leading the PFC to believe that the Applicant was willing to have a sexual relationship with the PFC. Applicant states that there were a number of times that the Applicant gave the PFC passionate kisses to keep her quiet.

910416:  Applicant's voluntary statement made to CID, MCB Camp S.D. Butler. Applicant stated that she used PFC K_ to satisfy needs and desires that would have been satisfied with the Applicant’s husband, if Applicant was not separated from him at the time. Applicant willingly participated in hugging and kissing but states these acts had nothing to do with being gay or bi-sexual.

Undated:         Applicant notified of intended recommendation for honorable discharge by reason of homosexuality as evidenced by her engagement in homosexual acts. Applicant informed the lowest characterization she could receive was under honorable conditions (general).
911008:          Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
911126:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed homosexuality acts, and that such acts warranted separation, and recommended discharge under honorable conditions (general).

911226:  Commanding Officer notifies CMC that Applicant’s promotion certificate to Staff Sergeant is returned undelivered. Applicant not considered qualified for promotion due to her recommendation for administrative separation with an under honorable conditions (general) characterization of service by reason of homosexuality. The recommendation for separation is based upon and amplified by her self-admitted involvement with a junior Marine. This conduct is not conducive with that expected by a Marine Staff NCO and cannot be condoned.

920116:  SJA review determined the case sufficient in law and fact. Recommended honorable discharge.

920117:  GCMCA [CO, 3d FSSG] directed the Applicant's discharge under honorable conditions (general) by reason of homosexuality - act.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920220 under honorable conditions for homosexuality - acts (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. A Marine may be discharged for homosexual acts even though the Marine may not think of herself as “gay” or “bi-sexual.” The Applicant admitted in separate official statements that she had committed homosexual acts. On 19911126, an Administrative Discharge Board, based upon a preponderance of the evidence, found that the Applicant had committed homosexuality acts, and that such acts warranted separation, and recommended discharge under honorable conditions (general). The NDRB found that the circumstances unique to this case met all the criteria for separation under Paragraph 6207.3.b.(1) of MCO P1900.16D (A), homosexual acts. A characterization of service of under honorable conditions (general) 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 during the enlistment under review was marred by an adverse counseling entry for DWI on one occasion and by the inappropriate relationship the Applicant maintained with a PFC. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. While she may feel that she was victimized by the PFC, the record is devoid of evidence that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. An upgrade to honorable is 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 her service to her country for the enlistment under review. The discharge was proper and equitable. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. Relief denied.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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 P1900.16D), effective
27 Jun 1989 until 17 August 1995, Paragraph 6207, HOMOSEXUALITY .

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 “ 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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