Upgrade.Vet

USMC | DRB | 2008_Marine | MD0800822

Original file (MD0800822.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080222

Characterization of Service Received:

Narrative Reason for Discharge: HOMOSEXUAL CONDUCT

Authority for Discharge: MARCORSEPMAN (homosexual conduct)

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19980421 - 19980518              Active:
Period of Service Under Review:
Date of Enlistment: 19980519               Period of enlistment : Years Months             Date of Discharge: 20000728
Length of Service : Yrs Mths 10 D ys      Education Level:         Age at Enlistment:       AFQT: 57
MOS: 0411        Highest Rank:                   Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
Awards and Decorations ( per DD 214): Rifle

Periods of UA / CONF :

NJPs :
         20000211 : Art(s) 92 (Failure to obey an order) , 107 x 2 (False official statement) .
                                             Awarded - , , Susp -
         20000526 : Art(s) 92 .              Awarded - , , Susp -

6105 Counseling :
         20000301 : For anterior cruciate ligament tear /failure to improve and follow prescribed medical treatment. .

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. Veteran’s Benefits
2. Denied Medical Board
3. Denies Homosexuality
Decision

Date: 20 08 0501 Location: Washington D.C R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall HOMOSEXUAL CONDUCT .

Discussion

: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding ; specifically the paragraph concerning Service Benefits.

Issue 2 (Equity) The Applicant infers he was denied a medical board for his injured right knee that was surgically repaired on 11 June 1999 . According to the Applicant’s official m ilitary record, he was officially counseled on 1 March 2000 by his commanding officer for failure to improve or follow the medical treatment prescribed , and that he would be processed for an administrative discharge if his condition remained unchanged. The administrative discharge would be based on a p hysical condition not a disability due to his patellofemoral syndrome , as identified by his medical doctor. For the Applicant’s edification, DoD regulations stipulate separations for misconduct take precedence over potential separations for other reasons. The Applicant met the criteria for administrative separation due to homosexual conduct. Federal law states h omosexual conduct is incompatible with military service : a ny Marine who engages in homosexual conduct will be processed for separation from the Marine Corps in accordance with DoD and Naval policy. The Applicant is directed to the Addendum for further information concerning this issue; specifically the paragraph concerning Medical Conditions and Misconduct.

Issue 3 (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. There is credible evidence in the record the Applicant engaged in homosexual conduct. T he evidence of record does not demonstrate the Applicant was not responsible for h is c onduct or that he should not be held accountable for h is actions. The Applicant’s record contains a signed statement to the Commanding Officer, Electronics Maintenance Company openly admitting he is gay and stating his difficulty with being gay and trying to hide this fact from his fellow Marines. C ertain serious offenses warrant separation from the Naval service in order to maintain proper order and discipline ; homosexual conduct is one of these offenses. The Applicant’s statement denying homosexuality eight years after the fact do not negate the circumstances which highlighted this incident and led to the command’s decision for a discharge.

An honorable characterization is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance. A general (under honorable conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the memb e r’s conduct or performance outweigh pos i tive aspects of the member’s military record. The Applicant’s record was marred by two non-judicial punishments for violations of Articles 92x2 (Failure to obey order/regulation) and 107x2 (False Official statements). The command chose an administrative process instead of preferred charges to a Special Court-Martial. V iolation s of Article (s) 92 and 1 07 are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. Based on this evidence the Board determined an upgrade or change in the characterization of service 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 . The Marine 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 92 and 107.

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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USMC | DRB | 2008_Marine | MD0800822

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