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NAVY | DRB | 2004 Marine | MD04-00333
Original file (MD04-00333.rtf) Auto-classification: Denied


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


ex-LCpl, USMC
Docket No. MD04-00333

Applicant’s Request
The application for discharge review was received on 20031210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040812. 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 four to one that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/HOMOSEXUAL ADMISSION, authority: MARCORSEPMAN Par. 6207.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


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

 Issue 1: “I served my country honorably as best as I could fighting depression over the loss of my mother 6 months after my enlistment. Although I had received my discharge for certain reasons I still aqired a letter of accomindation and other letters and awards before my discharge. I was an active Marine taking place in many functions. Although I do not wish to re enter into the Corps I would like to see my discharge upgraded to an honorable. Thank you for your time and efforts on my evaluation. (Signed) S_ R_ (Applicant) .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USMCR (J)               990729 - 991024  COG

 Period of Service Under Review :
Date of Enlistment: 991025               Date of Discharge: 020405

 Length of Service (years, months, days):
         Active: 02 05 11
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 43
Highest Rank: LCpl

 Final Enlisted Performance Evaluation Averages (number of marks):
Proficiency: 4.2 (7)              Conduct: 4.1(7)

 Military Decorations: CertCom
Unit/Campaign/Service Awards: SSDR

Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

020222:  Counseled for deficiencies in performance and conduct. [Violation of Article 134, conduct unbecoming due to contributing to the delinquency of a minor.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
020319:  Applicant’s written declaration. … I have known of my adverse sexuality since I was sixteen and I came in the Marine Corps knowing that such behavior is not tolerated … … I cannot live in an environment that will not accept the lifestyle that I have chosen. I no longer want to live behind a mask and pretend that I am something that I am not.
020320:  Applicant’s statement of understanding of paragraph 6207 of MCO P1900.16F with regard to his homosexual conduct.

 020321:  Applicant notified of intended recommendation for discharge of general (under honorable conditions) by reason of homosexual conduct as evidenced by his statement that he admitted to being a homosexual.
020321:  Applicant advised of his rights and having elected not to consult 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.
020321:  Commanding officer recommended discharge to be general (under honorable conditions) by reason of homosexual conduct due to the Applicant’s verbal and written statements that he is a homosexual.
020321:  SJA review determined the case sufficient in law and fact.

 020322:  GCMCA [Commander, 2d Force Service Support Group] directed the Applicant's discharge to be general (under honorable conditions) by reason of homosexual conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was released from the Marine Corps on 20020405 with a general (under honorable conditions) discharge for homosexual conduct - 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).
Issue 1. The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity is evident during the Applicant’s enlistment. The Applicant freely admitted, verbally and in writing, to a propensity to engage in conduct which he knew was not compatible with military service and “ that such behavior is not tolerated .” 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 not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. 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 P1900.16F), effective
01 Sep 2001 until Present, Paragraph 6207, HOMOSEXUAL CONDUCT.


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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