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USMC | DRB | 2008_Marine | MD0800539
Original file (MD0800539.rtf) Auto-classification: Denied

ex-Pvt, USMC
Current Discharge and Applicant’s Request
Application Received: 20080131
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20010228 - 20010325              Active:         
Period of Service Under Review:
 Date of Enlistment: 2001032 6               Period of enlistment : Years Months             Date of Discharge: 20010503
Length of Service : 0 Yrs 1 Mth 8 D ys     Education Level:         Age at Enlistment: 17 Yrs 8 Mths AFQT: N/A
MOS: 9900        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      N/A
Awards and Decorations ( per DD 214): Rifle Pistol

Periods of UA / CONF :

NJPs :    
        
S CMs :            
        
SPCMs:  
        
CC:               

6105 Counseling :        

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)

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

Applicant’s Issues

 1. Reenlistment Opportunities .
2. Applicant recants homosexual statements made at time of discharge.

Decision

 Date: 20 08 0327             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall H omosexual A dmission .
Discussion

 : The request of the Applicant is an issue which the Board cannot form the basis of relief for the Applicant nor does the Board have the authority to grant the relief for which the Applicant petitioned. The applicant is directed to the Addendum regarding Re-enlistment/RE-codes.

Issue 2 (Propriety/Equity): The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant bears the burden of overcoming this presumption of regularity through the presentation of substantial and credible evidence to support his issue.

There is credible evidence in the applicant’s service record reflecting the Applicant made a written signed statement during his entry-level status (the first 180-days of continuous active military service) admitting a propensity to engage in homosexual conduct . The Applicant shortly thereafter also admitted during a Command Investigation to engaging in homosexual activity prior to entry in the Marine Corps and stated he had no intention of abstaining from homosexual activity in the future should it present itself. Based on Department of Defense, Directive 1332.14, Enlisted Administrative Separation, and Marine Corps Order P1600.19F, Marine Corps Separations and Retirement Manual, service members who make statements that demonstrate a propensity or intent to engage in homosexual acts are eligible for separation ; not because it reflects the member’s sexual orientation, but because the statement indicates a likelihood the member engages in or will engage in homosexual acts.

The Applicant has now suggested he made the statements concerning his Homosexuality because he was young and inexperienced. The validity of the Applicant’s signed statement is an issue which the Board cannot review or adjudicate.
Providing a signed false official statement is a violation of the Uniform Code of Military Justice (UCMJ), Article 107. Violation of Article 107 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. Based on the period of entry-level service under review a change in type of separation would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record, Discharge Process and evidence submitted by the Applicant, the Board found that

Pertinent Regulation/Law

 A Ma rine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 1995 until 31 Aug 2001, paragraph 6207, HOMOSEXUAL CONDUCT .

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. 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 s 125 and 134.




ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
 Washington Navy Yard DC 20374-5023

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