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USMC | DRB | 2011_Marine | MD1101550
Original file (MD1101550.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110607
Characterization of Service Received:
Narrative Reason for Discharge: HOMOSEXUAL ADMISSION
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         NONE              Active:            19940617 - 19970616

Period of Service Under Review:
Date of Current Enlistment: 19980128     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020103      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 7 D a y ( s )
Education Level:        AFQT: 53
MOS: 2532
Proficiency/Conduct M arks (# of occasions): ( /Inc ) / ( /Inc )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Time Lost Per DD 214:    UA       19991231 - 20010802 (582 days)   Pre-Trial CONF 20010804 - 200 10829 ( 26 days)
                                    CONF     20010830 - 20020101 (125 days)
NJP:

SCM:

SPCM:

- 20010830 :       Art icle (Unauthorized absence 19991231 - 20010802 ) , 582 days
         Sentence : RIR(to E-1) 6 months (pre-trial confinement, 26 days ; confinement , 125 days)

CC:

Retention Warning Counseling :

- 19990518 :       For UA from appointed place of duty, your work section from about 1300 - 1630 on 19990430

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE MARKSMAN BADGE, SEA SERVICE DEPLOYMENT RIBBON, MERITORIOUS MAST ”
         “ (582) 19991231 - 20010802, (151) 20010804 - 20020101 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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. Public Law 111-321, signed 22 Dec 2010 (implemented 20 Sep 2011).
C. Under Secretary of Defense (PR) Memorandum (Repeal of Don’t Ask Don’t Tell), 20 Sep 2011.

D . 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 .



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

Applicant’s Issues

 1.       Applicant seeks discharge upgrade due to repeal of the “Don’t Ask, Don’t Tell” policy.

Decision

Date: 20 1 1 0 9 29            Location: Washington D.C .         R epresentation :

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

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied one decisional issue for the Board ’s consideration . The Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 retention counseling warning (18 May 1999) for unauthorized absence (UA) and special court-martial for violation o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 31 Dec 1999 - 2 Aug 2001, 582 days, terminated by civil police apprehension ) . The record revealed that while undergoing trial by special court-martial (for 582 days UA), the Applicant made an unsworn statement during the presentencing phase of the trial (not a result of questioning his sexuality), in which he stated that he was a homosexual, that he had been a homosexual for approximately two years in the military, and went UA because he didn’t want to be a homosexual in the military and be unable to fully express his desires. The Applicant received punishment (reduction in rank to E-1, forfeiture of two-thirds pay for six months, and confinement for six months) for his violation of the UCMJ Article 86, but was not awarded a punitive discharge ( i.e., B ad C onduct ) by the military judge. Based on his official statement during the court-martial, the Applicant’s command conducted an inquiry into the circumstances surrounding the Applicant’s statement to determine whether he should be processed for administrative separation due to homosexual admission , which was mandatory at the time per the Marine Corps Separation and Retirement Manual (MARCORS E PMAN). On 5 Nov 2001, the Applicant submitted a written statement confirming his homosexuality and his command subsequently processed him for separation. When notified of a dministrative separation using the administrative board procedure on 14 Nov 2001 , the Applicant exercised his right to consult with a qualified counsel, but waived his rights to submit a written statement of rebuttal and request an administrative separation board . The Applicant was separated from the Marine Corps on 3 Jan 2002 with a General (Under Honorable Conditions) discharge due to Homosexual Admission.

: (Decisional) ( ) . The Applicant seeks a discharge upgrade due to repeal of the “Don’t Ask, Don’t Tell” policy. With a clean service record and adherence to the minimum acceptable levels of performance and conduct, a homosexual ad mission would normally rate an Honorable character of service upon discharge. However, in the Applicant’s case, he willfully violated UCMJ Article 86 (Absence without leave) by leaving his appointed place of duty and remained so for 582 days until he was apprehended by civilian police. Normally, this violation of the UCMJ would result in a B ad C onduct discharge as a result of trial by court -martial or an Under Other Than Honorable Conditions discharge as a result of administrative separation. In the Applicant’s case, since he was not awarded a punitive discharge during sentencing by the military judge (considered the separation authority in a special or general court-martial ) , he was retained for further service until his subsequent administrative discharge for violation of the “ Don’t Ask , Don’t Tell Policy . ” In accordance with the M ARCORSEPMAN , a n H onorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. Since the Applicant’s record of service contained a special court-martial conviction (felony conviction), he was awarded the least favorable characterization of service available for hom osexual admission, which was a General (Under Honorable Conditions). The Applicant was extremely fortunate that he received a General (Under Honorable Conditions), as his serious misconduct typically results in a Bad Conduct or Under Other Than Honorable Conditions discharge. After careful examination and deliberation, the B oard found that the Applicant’s issue did not provide a basis for which relief could be granted. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found the discharge was proper and equitable at the time of discharge. Pursuant to guidance set forth in the Under Secretary of Defense (P ersonnel & Readiness ) Memorandum (Repeal of Don’t Ask , Don’t Tell), dated 20 Sep 2011, and updated service policy, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain HOMOSEXUAL ADMISSION . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.
Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at or completion of higher education (official transcripts); 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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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