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USMC | DRB | 2012_Marine | MD1200577
Original file (MD1200577.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120118
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:
         Reentry Code change to: RE-1A

Summary of Service

 Prior Service: U S A National Guard (1 yr, 7 months) - Discharged 20070806 with a General (Under Honorable Conditions) characterization for Unsatisfactory Performance
Inactive Service: USMCR (DEP) 20070807 - 20070807                Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070807     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090415      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 70
MOS: 0121
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , ,

Periods of UA / CONF :

NJP:

- 20090310 :       Article (False official statement)
         Article 131(Perjury)
         Awarded: Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling :

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 :        




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

Applicant’s Issues

 1. The Applicant seeks a change in the characterization of his service at discharge and his reentry code in accordance with repeal of the “Don’t Ask, Don’t Tell” law.
Decision

Date: 2012052 4            Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reentry Code shall RE-4 .

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. The Applicant identified one decisional issue to the NDRB related to the equity and propriety of his discharge. In addition, t he NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the discharge action met the pertinent standards of equity and propriety. The
Applicant’s record of service documents one nonjudicial punishment for violations of the Uniform Code of Military Justice: Article 107 (False official Statement) and Article 131 (Pe rjury).

In accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) (MCO P1900.16F), effective 1 September 2001 until Present - Paragraph 6207, HOMOSEXUAL CONDUCT , which was in effect at the time of the Applicant’s discharge , the Applicant’s in-service official statement regarding a consensual homosexual act created a rebuttable presumption that t he Applicant had engaged in, or had the propensity to engage in, homosexual acts. The Applicant chose not to challenge or to rebut this presumption. Based on the official written statement provided by the Applicant, the decision not to rebut any presumptions thereafter, and the c ommanding o fficer’s belief that the Applicant’s statements were credible, the Applicant was processed administratively for involuntary separation with a corresponding reentry code of RE-4. When notified of administrative separation processing using the procedure, the Applicant acknowledged that the least favorable characterization of service warranted at discharge was General (Under Honorable Conditions) and that the command was recommend ing separation with a General (Under Honorable Conditions) characterization. The Applicant acknowledged understanding of the notification of separation proceedings and rights therein but failed to acknowledge his individual right s regarding consultation with counsel or submission of statements for consideration by the S eparation A uthority. At the time of discharge, processing for separation was mandatory in accordance with paragraph 6207 of the MARCORSEPMAN a nd Department of Defense Policy under the “Don’t Ask, Don’t Tell” law. Given the documents of record, the Naval Criminal Investigative Service (NCIS) investigation, the Applicant’s personal statement, and the c ommanding o fficer’s statement in the administrative separation endorsement, the NDRB determined that the Applicant’s separation by reason of Homosexual Act was a proper reflection of the reason for discharge and was proper and equitable at the time it was issued.

: (Decisional Issue) ( ) . The Applicant seeks a change in the characterization of his service and his reentry code in accordance with the repeal of the “Don’t Ask, Don’t Tell” law .
Characterization of Service: The Applicant seeks a change in his characterization of service at discharge to Honorable. Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful , but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The Applicant’s service record documents a nonjudicial punishment for violation s of the UCMJ. Additionally, the Applicant ’ s service record documents formal page 11 service record book counseling’s for failure of the Marine Corps Physical Fitness Test. Moreover, the c hain of c ommand’s written recommendations for discharge document chronic minor misconduct, unreliability, and include recommendations throughout the chain of command for an Under Other Than Honorable Conditions c haracterization of service . As such, the NDRB determined the quality of the Applicant’s service met the minimum standards of accept able conduct and performance of duty for military personnel , but that significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Accordingly, by a vote of 5-0, the NDRB found that the characterization of the Applicant’s discharge was warranted, was equitable , and is consistent with the characterization of discharge given others in similar circumstances and that no change is warranted. Relief denied.

Narrative Reason for Discharge: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum regarding the repe a l of the “Don’t Ask, Don’t Tell” law, service discharge review boards 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 designator (SPD code). The record of service reflects that, at the time of discharge, there was no other reason for discharge specified other than the homosexual admission and that no aggravating factors were involved. Accordingly, the NDRB determined that relief in the form of a change to the narrative reason for discharge shall be granted to Secretarial Authority. Additionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MARCORSEPMAN paragraph 6214) with a corresponding Separation Code designator of JFF1.

 Reentry Code: In accordance with the Under Secretary of Defense (P&R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 September 2011, service review boards should normally grant requests to change the reentry code to an immediately-eligible-to-reenter category if the discharge and corresponding reentry code was: (1) 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. As authorized by the Assistant Secretary of the Navy (Manpower & Reserve Affairs), the NDRB may change reentry codes as set forth in the USD (P&R) memorandum dated 20 September 2011. The USD (P&R) policy memorandum stated that, if applicable, the new RE code should be RE-1J, however, this is an Air Force specific re-entry code. In accordance with the guidance and intent of the policy memorandum, the applicable Marine Corps reentry code would be RE-1A (recommended and eligible). The Applicant received an RE-4 reentry code due to early termination of his service for Homosexual A ct . The record further reflects negative endorsements by his direct leadership regarding a pattern of less than honorable service. Accordingly, t he NDRB deter mined that the reentry code, as issued, was warranted and that the Applicant would not have been recommended for reenlistment if the discharge proceedings for Homosexual Act had not occurred. As such, the reentry code of RE-4 (not recommended for reenlistment) was accurate and appropriate at the time of issue and does not warrant change. Relief 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) , but the narrative reason for separation shall change to SECRETARIAL AUTHORITY with a corresponding SPD code of JFF 1 and the authority for discharge shall change to MARCORSEPMAN paragraph 6214 . The reentry code shall remain RE-4. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge. The Applicant is directed to the Addendum for additional information.

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 .

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

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


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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