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USMC | DRB | 2011_Marine | MD1101690
Original file (MD1101690.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110630
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:         USMCR (DEP)       20040827 - 20041205     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20041206     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051222      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 56
MOS: 6300
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :
- 20050802 :       For not being at the appointed place of duty

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 (P ersonnel & Readiness ) 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 contends his discharge was improper/inequitable due to improper conduct by a F leet and F amily S ervices counselor he was seeking help from.

Decision

Date: 20 1 1 0 929            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 . T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did not include any 6105 retention counseling warnings, commanding officer nonjudicial punishment, or trial by courts-martial. The record did reveal that the Applicant was referred (by the Navy command to which he was assigned) to Fleet and Family Services Center (FFSC) for counseling related to his complaint of poor sleep. During his conversation with the counselor, the Applicant stated his reason for seeking counseling was concern for his safety after watching a movie with some fellow classmates and hearing them make general statements about homosexual s in the Marine Corps . When questioned why this bothered him, the Applicant confessed that he was homosexual and al though none of his classmates knew of this, he was concerned based on the comments they made while watching the movie. The counselor then advised the Applicant he could be gay in the Marine Corps, but he just could not engage in homosexual activity. The Applicant stated he just couldn’t do that. Based on the conversations and the Applicant’s statement regarding his inability to abide by the “Don’t Ask, Don’t Tell” policy in effect at the time, the counselor referred the Applicant to seek legal counsel at the Navy Legal Services Office. After seeking legal counsel, the Applicant submitted a sig n ed statement (26 Jul 2005) to his command stating that he was homosexual. On 27 Jul 2005, the Applicant’s Commanding Officer (CO) appointed an Investigating Officer (IO) to conduct a Preliminary Inquiry to determine whether the Applicant’s statement was credible or used to obtain an early release from his enlistment contract. On 15 Aug 2005, the IO reported the findings of the inquiry which determined the Applicant’s statement to be credible (based on statements from the FFSC Counselor, Command Chaplain, and the Applicant) that the Applicant had not engaged in homosexual conduct (but had the propensity to/intended to) and recommended administrative separation , which was mandatory per the Marine Corps Separation and Retirement Manual in effect at the time. When notified of a dministrative separation processing using the procedure on 26 Oct 2005 , the Applicant waived rights to consult with a qualified counsel, submit a written statement of rebuttal , a nd request an administrative separation board . On 31 Oct 2005, the Applicant’s CO submitted a request for administrative separation of the Applicant with an Honorable discharge (based on the Applicant’s service record, performance, and lack of significant misconduct) due to Homosexual Admission. On 8 Dec 2005, the Judge Advocate reviewed the Applicant’s administrative separation package , disagreed with the CO, and recommended a General (Under Honorable Conditions) discharge. On 20 Dec 2005, the Separation Authority directed the Applicant be discharged with a General (Under Honorable Conditions) discharge due to Homosexual Admission. The discharge was effected on 22 Dec 2005.

: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable due to improper conduct by a F leet and F amily S ervices counselor he was seeking help from. T he Board conducted a detailed examination of the Applicant’s service records to determine whether command or U.S. Government sponsored entity impropriety may have led to an improper or inequitable discharge of the Applicant. After analyzing the service records, command preliminary inquiry investigation , and statements m ade by the FFSC counselor, the C ommand Chaplain, and the Applicant, the NDRB could find no evidence of impropriety. Moreover, the Board noted that after seeking legal counsel , the Applicant chose to submit a signed letter to his command stating he was homosexual. When advised of pending administrative separation processing on 26 Oct 2005, the Applicant waived his right to submit a written statement in

rebuttal to the proposed separation for homosexual admission. Accordingly, and with no evidence to support the Applicant’s claim of impropriety, the B oard found this issue to be without merit and did not provide a basis for which relief could be granted. However, after careful review of the records and with no evidence of significant misconduct (6105 r etention w arning s , NJP s , or c ourts- m artial), the Board determined that the discharge was inequitable. Relief warranted.

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, but inequitable at the time of discharge. Therefore, the characterization of service shall 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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