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USMC | DRB | 2008_Marine | MD0801913
Original file (MD0801913.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080922
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)     19991203 - 20000305     Active:            20000306 - 20031001

Period of Service Under Review:
Date of Enlistment: 20031002     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060717      H ighest Rank:
Length of Service : Y ea rs M on ths 16 D a ys
Education Level:        AFQT: 40
MOS: 0121
Proficiency/Conduct M arks (# of occasions): 4.9 (NFIR ) / 4.9 ( )          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) (2) LoA (11) CoC (3) MM (3)

Periods of UA / CONF :

NJP: SCM: SPCM: CC:

Retention Warning Counseling :

- 20051214 :       E vidence that you made an unsolicited statement you have engaged in homosexual acts, and unless there are further approved findings of the following: that such acts are a departure from the member’s usual and customary behavior; that such acts under all the circumstances are unlikely to recur ; that such acts were not accomplished by the use of force, coercion, or intimidation; that under the particular circumstances of the case, the member’s continued presence in the Marine Corps is consistent with the interest of the Marine Corps in proper discipline, good order, and morale, that the member does not have a propensity or intent to engage in homosexual acts, there is a mandatory requirement to administratively separate you.

Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:      Service / 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 Congress member :

Other Documentation :


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

Applicant’s Issues

 1. Entitlement to back pay .
2. Record of service .
3. Applicant denies violating the “Don’t Ask, Don’t Tell” policy .
4. Improper Administrative Separation Board.
 6. Post-service conduct.

Decision

 Date: 20 0 9 0205            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall HOMOSEXUAL ADMISSION .
Discussion

 : The NDRB does not have the authority to make determinations regarding pay and allowances. The Applicant is advised to petition Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 to address this Issue.

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his record of service. Specifically, the Applicant cites his outstanding fitness reports, proficiency and conduct marks, selection for an education program which could lead to a n officer’s commission and numerous positive comments made on behalf of the Applicant’s conduct and performance. 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’s record of service does not indicate an y record of misconduct or sub-standard performance , and does in fact contain many favorable remarks regarding the Applicant’s quality of service. However, the record of evidence also shows the Applicant made an unsolicited statement of engaging in homosexual conduct to his First Sergeant. This statement, which is documented by a sworn statement by the First Sergeant, initiated a mandatory administrative separation pr ocess due to homosexual conduct . The Applicant contends correctly this is not sufficient grounds to warrant any characterization of service except “ Honorable.” However, the available record of evidence shows the Applicant’s Administrative Sepa ration Board considered evidence he engaged in homosexual conduct in a circumstance which could have resulted in an “Under Other Than Honorable Conditions” characterization of service. The NDRB did not have access to a transcript or summary of the Applicant’s Administrative Separation Board. Unsuccessful attempts were made to obtain a copy from the Applicant’s representatives and the Applicant’s former command. Therefore , the NDRB relied heavily on the presumption of regularity in determining the Applicant’s record of service was considered properly by the Administrative Separation Board, which was fully aware of the Applicant’s performance and conduct and recommended separation with the characterization of “General (Under Honorable Conditions) ” . This recommendation was ultimately endorsed by the chain of command up to, and including the Commanding General, Fourth Marine Division. The NDRB determined the awarded discharge was appropriate and a n upgrade founded upon the Applicant’s record of service would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because he did not violate the “Don’t Ask, Don’t Tell” policy. Specifically, the Applicant contends the only evidence against him is a conversation he had with his First Sergeant. The record of evidence shows the Applicant’s First Sergeant made a sworn statement the Applicant admitted he had engaged in homosexual conduct in a conversation initiated by the Applicant. The First Sergeant properly advised the command of the Applicant’s admission and the administrative separation process was initiated. A service member’s statement of homosexual conduct creates a rebuttable presumption he engage s in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts. The Applicant was advised of this presumption and



allowed to rebut the presumption during an Administrative Separation Board. The Administrative Separation Board determined the preponderance of the evid ence supported the presumption the Applicant was likely to or had previously engaged in homosexual activity. The NDRB determined the awarded discharge characterization recommended by the Administrative Separation Board was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because his A dministrative Separation Board was improper. Specifically, the Board erred in allowing ambiguous email communications to be entered as evidence. The NDRB does not have access to the email in question nor did the Applicant provide such emails for the NDRB to review ; as such, the NDRB must again rely on the presumption of regularity. T he NDRB notes the Applicant’s counsel at his Administrative Separation Board noted this in his Letter of Deficiency dated 8 May 2006. The letter of deficiency and the c ommand’s response were both considered by the Commanding General in determining the Applicant’s case. The NDRB rejects the Appli c ant’s contention and determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because of his post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug - free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Applicant provided a letter verifying employment and a character reference statement. While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct did not support an upgrade. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate. Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

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

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual (MCO P1900.16F), effective 1 September 2001 until Present,
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 .


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 or is referred to a court-martial fo r 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 other medical related reasons. ” 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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