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USMC | DRB | 2011_Marine | MD1102140
Original file (MD1102140.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110921
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6C

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19870928 - 19880718        A c tive:          19880719 - 19910825 ( Officer program )
USNR (ROTC) 19910826 - 19951215 HON ( Accept comm ) USN 19951216 - 20011231 ( Transfer USMC )

Period of Service Under Review:
Date of Appointment : 20020101    Age:
Years Contracted: Indefinite
Date of Discharge: 20080627      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 81
MOS: 0202
Officer’s Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , Pistol , JSAM , (2) , (3) , , (2) , (2) , AFOUA (2) , (2), NMCAM , JSCM , NMCCM , , , KCM , JMUA (2) , , CoA (3)

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ GENERAL (UNDER HONORABLE CONDITIONS) ”

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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.

B. The Marine Corps Separation and Retirement Manual (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 6207, HOMOSEXUAL CONDUCT .

C . 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 .

D . Public Law 111-321, signed 22 Dec 2010 (implemented 20 Sep 2011).

E . Under Secretary of Defense (P&R) Memorandum (Repeal of Don’t Ask, Don’t Tell), 20 Sep 2011.




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

Applicant’s Issues

 1 . The Applicant believes that the narrative reason for separation was improper , contending that there was no finding that he engaged in any homosexual acts; as such, the narrative reason should change to Homosexual Admission based on his admission t o having placed ads on password- protected si tes soliciting homosexual encounters.

2. The Applicant contends that his discharge characterization is improper because of procedural errors made in determining th e characterization of service.

3. The Applicant contends that his discharge characterization is inequitable , because it was based on a single incident rather than the entirety of his service.

4. The Applicant contends that the discharge characterization is inequitable due to the repeal of th e “Don’t Ask, Don’t Tell ” (DADT) law and associated regulations.

5. Supplemental Issues submitted: The Applicant seeks a change in the narrative reason for his discharge and to upgrade the characterization of his discharge to Honorable based on repeal of the “Don’t Ask, Don’t Tell” law and subsequent implementation of new D epartment of Defense (D o D ) policy .

Decision

 Date: 20 1 2 0523           Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall GENERAL (UNDER HONORABLE CONDITIONS)
By a vote of the Narrative Reason shall .
By a vote of the Reentry Code shall remain “N/A ”

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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial, credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the Applicant’s discharge met the pertinent standards of equity and propriety. The Applicant initially submitted four issues related to the equity and propriety of the discharge action for consideration; he subsequently submitted a fifth issue for consideration. The Applicant provide extensive documentation to include copies of correspondence with Navy Personnel Command, his Board of Inquiry, character references , and post - service employment references for the NDRB’s consideration.

The Applicant’s total record of service includes two pr e vious H onorable periods of active duty service , both as a U.S. Nav y e nlisted service member and as U.S. Nav y o fficer. The record of service also includes an inactive duty period of service in Naval ROTC , which was characterized as Honorable. Each of these period s of service, which cover s a span of service from July 1988 to December 2001, were characterized as Honorable and , for each break in service , the Applicant received a n appropriate DD Form 214 ( Certificate of Release or Discharge from Active Duty ) characterizing that period of service and the narrative reason for which th at service period ended. In review of the Applicant’s most recent DD Form 214 and issues presented, the applicable period of service under review is 6 years, 5 months , and 27 days ( 20020101 - 20080627 ) as a commissioned Marine Corps o fficer in the rank s of Captain and Major.

During th e period of commissioned service under review , the Applicant was directed to show cause for retention in the Marine Corps following a command investigation that determined that there was sufficient evidence to support a finding of homosexual conduct. Specifically, the inquiry found that the Applicant had posted advertisements on two password - restricted adult websites , which included semi-nude photographs of himself and identified himself as a United States Marine - both by his clothing and his website “handle” - seeking other military service members for homosexual encounters. When confronted with the results of the inquiry, the Applicant admitted to the first General Officer in his chain of command that the advertisements were indeed his, but that he was only seeking “friends to talk to. ” The service component commander found that there was probable cause to believe that the Applicant ha d engaged in homosexual conduct and forwarded the findings to the Show Cause Authority. The Show Cause Authority found the evidence credible and sufficient and directed the convening of a Board of Inquiry (BOI) to show cause for the retention of the Applicant in the Marine Corps.

 The Applicant was advised - in writing - of his administrative rights in relationship to his requirement to show cause for retention in the Marine Corps before a Board of Inquiry . He was advised further that the least favorable outcome that may result in his case was separation with a characterization of General (Under Honorable Conditions) - as determined by the Secretary of the Navy. The Applicant , after consulting with counsel, elected to exercise his right to waive the BOI and submitted an unconditional waiver of the BOI . In this unconditional waiver, the Applicant acknowledged waiving the opportunity for the B OI to hear his case for retention or characterization of his service. The Applicant further acknowledged the least favorable characterization of his service as General ( Under Honorable Conditions) but requested consideration for characterization of his service as Honorable. Moreover, he admitted to exercising poor judgment and that a valid basis, as defined in the applicable regulation, existed to show that a propensity to engage in homosexual conduct existed. Finally, the Applicant appended a letter to the Show Cause Authority outlining his justification for consideration of an Honorable characterization. The recommendation for discharge was reviewed at each level of the chain of command and was endorsed with recommendations for the Secretary of the Navy. The Secretary of the Navy , through his delegated authority - the Assistant Secretary of the Navy (Manpower and Reserve Affairs), reviewed the service recommendations and the supplemental appeal from the Service Members Legal Defense Network. The Service Secretary approved the recommendation for separation and directed the Applicant’s discharge from the Marine Corps for Homosexual Conduct (Acts) with a General (Under Honorable Conditions) characterization of his service for the period under review. In the Service Secretary’s decision, he specifically endorsed the fact that the Applicant’s appearance in Marine Corps t -shirts on two adult websites seeking homosexual activity with pornographic images in his profile was an openly promiscuous activity that was service discrediting. His finding was that the Applicant’s service ha d generally been honest and faithful but that his openly promiscuous and service - discrediting conduct was a significant departure from that conduct expected of a Naval Officer and a Gentleman.

Issue s 1 & 5 : (Decisional) ( ) . The Applicant seeks a change in the narrative reason for separation based on repeal of the “Don’t Ask, Don’t Tell” law and subsequent implementation of new D o D policy . Furthermore, he believes that the narrative reason for separation was improper, contending that there was no finding that he engaged in any homosexual acts; as such, the narrative reason should change to Homosexual Admission based on his admission to having placed ads on password - protected si tes soliciting homosexual encounters. T he discharge was reviewed for both issues, as one subsumes the other if relief is determined to be warranted i n accordance with the 20 September 2011 Under Secretary of Defense (Personnel & Readiness) guidance memorandum regarding the repeal of the “Don’t Ask, Don’t Tell ” law.

The Applicant was discharged i n accordance with Paragraph 6207 ( HOMOSEXUAL CONDUCT) of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) (MCO P1900.16F - effective 1 September 2001 until Present ) and Secretary of the Navy Instruction (SECNAVINST) 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS - effective 15 December 2005 until Present ), which establishes the policies, standards , and procedures for the administrative separation of Navy and Marine Corps officers from the N aval S ervice in accordance with Title 10, United States Code , and DoD Directive 1332.30 of 14 Mar 97 . Both of these directives were in effect a t the time of the Applicant’s discharge . T he Applicant’s in-service admission and corresponding official statement s to his chain of command created a rebuttable presumption that he engaged in, or had the propensity to engage in, homosexual acts. Moreover, t he Applicant chose not to challenge or to rebut this presumption. The Applicant’s service record contains a near complete copy of the supporting documents in the discharge action. At the time of discharge, processing for separation was mandatory in accordance with the MARCORSEPMAN and SECNAVINST . Based on the admission made by the Applicant, his decision not to rebut any presumptions thereafter, and the chain of command’s belief that the Applicant’s statements were credible, the Applicant was processed administratively for separation. Given the detailed documents of record, including the Command Inquiry and the Applicant’s unconditional waiver and acceptance of his Homosexual Conduct in his statement in the administrative separation endorsement, the NDRB determined that the Applicant’s separation by reason of Homosexual Conduct, in accordance with paragraph 6207 of the MARCORSEPMAN and SECNAVINST 1920.6C , was proper and equitable at the time it was issued.
In accordance with the 20 September 2011 Under Secretary of Defense (Personnel & Readiness) M emorandum regarding the repeal of “Don’t Ask, Don’t Tell,” service d ischarge r eview b oards should normally grant requests to change the narrative reason for discharge wherein Homosexual Conduct was the only basis for discharge. This memorandum further directs that the narrative reason for separation should normally change to Secretarial Authority with a corresponding Separation Code (SPD code). The Applicant’s record of service reflects that, at the time of discharge, there was no other reason for discharge other than homosexual conduct (w hether Act or Admission) , and there were no aggravating factors as defined in the service regulations . Accordingly, the NDRB determined that relief in the form of a change to the narrative reason for separation to Secretarial Authority , as requested, shall be granted; additionally, the DD Form 214 shall be amended to reflect a corrected authority for d ischarge ( MARCORSEPMAN , paragraph 6214 and SECNAVINST 1920.6C ) with the corresponding SPD code of JFF1.

Issue s 2 and 3 : (Decisional) ( ) . The Applicant contends that his discharge characterization is improper because of procedural errors made in determining the characterization of service ; the chain of command failed to apply properly a balancing test in that the positive aspects of the Applicant’s service for 15 years outweighed the n egative a spects . Furthermore, the characterization is inequitable , because it was based on a single incident rather than the entirety of his service.

E ach period of service is an independent obligation, and characterization of service is determined for that specific period . The Applicant completed his first enlistment period with an Honorable characterization for that period of service ; subsequently, he graduated from the ROTC program and was c ommissioned in the United States Navy as an O fficer, receiving an H onorable characterization for the ROTC period and starting a new period of service as a Naval Officer. During this third period of service, h e requested and received approval for an interservice transfer in January 2002. As such, he was discharged from the Navy, received an H onorable characterization , and was accepted for appointment in the g rade of Captain in the United States Marine Corps. Accordingly, the Applicant has three period s of honorable service established by issued DD Form 214s, which document his service from September 1987 through December 2001. In the Applicant’s specific case before the NDRB, the period of service under review is from January 2002 until discharge i n June 2008 (6 yrs, 5 months, 27 days).

Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of service and is not necessarily dependent upon the narrative reason for separation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the period of service under review , including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. The Applicant was discharged due to Homosexual Conduct without the presence of any “aggravating factors” as defined in the separation documents regarding homosexual activity. In situations where no aggravating factors are found to be involved, and there is no other misconduct involved, an Honorable discharge is warranted. In the Applicant’s case, he admitted to showing poor judgment in his activities and specifically chose not to rebut any presumptions , to accept the chain - of - command’s recommendations , and , ultimately, to accept the Se cretary of the Navy’s decision.

The Applicant’s case is unique in that he posted pornographic images of himself on the I nternet , identifying himself as a United States Marine. The chain of command found these specific acts to be conduct unbecoming of an Officer and a Gentleman - a violation of Article 133 of the U niform Code of Military Justice - and to be service discrediting. Though the chain of command did not seek judicial or nonjudicial punishment for the unbecoming conduct, it is a part of the Applicant’s overall performance and conduct and thus should be reflected in the characterization of service received at discharge . There are certain moral attributes common to an d expected of an Officer and a Gentleman, a lack of which is indicated by acts of dishonesty, unfair dealings, indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone is, or can be, expected to meet unrealistically high moral standards; however, there is a limit of tolerance, based on customs of the service and military necessity, below which the personal standards of an Officer cannot fall. When it does, it seriously compromises that person’s standing as an O fficer or that person ’ s character as a G entleman, and ultimately may also be discrediting to the service. The first level of the chain of command found the Applicant’s indecent conduct to be service discrediting but recommended consideration for an Honorable discharge , citing his long history of service and loss of a future retirement (Note: These comments failed to characterize properly the service based on the performance of duties and conduct during this period of service only ) . Subsequently, the remainder of the reporting chain of command found the Applicant’s indecent con duct to be service discrediting and warranting of a General (Under Honorable Conditions) characterization of service; the Secretary of the Navy concurred. Based on the Applicant’s record of service under review ( 6 years, 5 months, 27 days ) , the NDRB determined the Applicant’s service was honest and faithful , but that significant negative aspects of his conduct or performance of duty (conduct unbecoming of an O fficer and a G entleman due to indecency and the discrediting nature of his conduct) did outweigh the positive aspects of his service record . The awarded characterization of service , as issued, was proper, was equitable, was warranted , and does remain as such. Accordingly, relief as requested is denied.

Issue 4 : (Decisional) ( ) . The Applicant contends that the discharge characterization is inequitable due to the repeal of the “Don’t Ask, Don’t Tell” law. In accordance with the Under Secretary of Defense (P ersonnel & R eadiness ) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 September 2011, s ervice d ischarge r eview b oards should normally grant requests to recharacterize the discharge to H onorable and / or requests to change the reentry code to an i m mediately-eligible-to-reenter category when both of the following conditions are met: (1 ) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT and (2) there were no aggravating factors in the record, such as misconduct. Moreover, e ach request must be evaluated on a case-by-case basis ; the award ing of an H onorable or G eneral discharge should normally be considered to indicate the absence of aggravating factors. The NDRB reviewed the evidence of record as documented in the official service record, the documentation submitted by the Applicant in support of his contentions, the numerous letters of character reference, and the Applicant’s personal statement . The NDRB determined that there were no aggravating factors to the homosexual conduct as defined in the applicable paragraphs of the separation documents (i.e., no force, intimidation, not on board a government facility or naval ship , etc.). However, the Applicant’s indecent conduct was determined to be conduct unbecoming of a Naval Officer and was service discrediting. Accordingly, the NDRB determined that the quality of the Applicant’s service did not meet the standard of acceptable conduct and performance for a Marine Officer to warrant an Honorable characterization ; the indecent conduct was a significant negative aspect of the member’s conduct or performance of duty and did outweigh the positive aspects of the member’s service record. As such, the General (Under Honorable Conditions) characterization received at discharge was proper, was equitable, an d remains as such. Relief , as requested , is denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the administrative separation process, the NDRB found the discharge was proper and equitable at the time of discharge. However, pursuant to Public Law 111-321 and in accordance with the guidance set forth in the Under Secretary of Defense (P&R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 Sep 2011, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) , the narrative reason for separation shall change to SECRETARIAL AUTHORITY with a corresponding SPD Code of JFF1 , and the authority for discharge shall change to MARCORSEPMAN paragraph 6214 and SECNAVINST 1920.6C . T he reentry code shall remain N/A . 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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