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USMC | DRB | 2012_Marine | MD1201309

Original file (MD1201309.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120529

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)       20030711 - 20040613     Active:

Period of Service Under Review:
Date of Current Enlistment: 20040614     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070531      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 40
MOS: 3112
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle OSSM (2) LoA (2)

Periods of UA / CONF :

NJP:    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 :

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 .

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

Applicant’s Issues

1.       Post-service conduct.
2.       NDRB Issue: Changes warranted after repeal of the Don’t Ask Don’t Tell (DADT) policy.

Decision

Date : 20 1 2 07 10          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 Reen try Code shall 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 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. 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 o f equity and propriety. The Applicant’s record of service documents no NAVPERS 1070/613 (Page 13) retention-counseling warnings and no nonjudicial or ju dicial punishments for violations of the Uniform Code of Military Justice (UCMJ) . The record does show the Applicant was the subject of an Article 32 investigation by the Naval Criminal Investigative Service for allegedly conducting forceful s o domy on another male servicemember. Base d on the results of the Article 32 investigation , the Applicant’s chain-of-command determined that a conviction at court-martial was unlikely . Since the Applicant admitted to taking part in homo sexual conduct , processing for separation was mandatory. When notified of administrative separation processing using the administrative procedure, the Applicant elected his right s to consult with a qualified counsel and submit a written statement.

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant submitted four letters of character reference. The NDRB considers 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. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. Relief denied.

: (Decisional) (Board Issue) (Propriety) RELIEF WARRANTED . During the Board’s review of the Applicant’s record of service and discharge process , the NDRB identified an i nequity in the Applicant’s characterization of service and determined that the Applicant warrants a change to the narrative reason for separation and corresponding reen try code in accordance with repeal of the “Don’t Ask, Don’t Tell” policy . The Applicant received a General (Under Honorable Conditions ) characterization of service at discharge. 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 reflects no retention counseling warnings, formal counselings, or findings of any misconduct in violation of the UCMJ. The Applicant’s service was involuntarily terminated based solely on his admission regarding his sexual preference and the admission was absent any substantiated aggravating factors. Based on the evidence of record, coupled with the fact that no reason for discharge was contemplated by the command prior to the Applicant’s sexual orientation admission, the NDRB determined the quality of the Applicant’s service met the standards of accepted conduct and performance of duty for military personnel. As such, it is appropriate to characterize that service under Honorable conditions. Relief granted.

Narrative Reason for Separation review: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel & Readiness) memorandum regarding the repeal of “Don’t Ask, Don’t Tell,” service discharge review boards should normally grant requests to change the narrative reason for discharge wherein Homosexual Admission was the only basis for discharge. This memorandum further directs that the N arrative R eason for S eparation should normally change to Secretarial Authority with a corresponding Separation Code (SPD code). The record of service reflects that, at the time of discharge, there was no other reason for discharge other than the homosexual admission. Accordingly, the NDRB determined that relief in the form of a change to the N arrative R eason for S eparation, as requested, shall be granted; additionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MILPERSMAN 1910-164) and the corresponding SPD code of JFF 1 .

Reentry Code review: In accordance with the Under Secretary of Defense (P & R) Memorandum (Repeal of Don’t Ask Don’t Tell), dated 20 September 2011, s ervice r eview b oards 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 the new RE code should be 1J; however, this is an Air Force specific re-entry code. In accordance with the guidance and intent of the policy memorandum, the applicable U.S. Marine Corps reentry code would be RE-1 A (eligible for reenlistment). The Applicant’s service record documents faithful service with no misconduct. The Applicant received an RE-4 reenlistment code due to early termination of his service for Homosexual Admission. In accordance with the Marine Corps Separation and Retirement Manual, the Applicant met all requirements for, and was, retention eligible prior to the Homosexual Admission. The NDRB determined that the record of service ( 4.4/4.3 Proficiency/Conduct over six observations ) along with his assigned billet performance, specific duties, and enlisted qualifications would clearly warrant a recommendation for retention, had the Applicant not been separated for his Homosexual Admission. As such, the NDRB determined that relief is warranted. The Applicant’s reentry code shall be changed to RE-1 A .

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 change to HONORABLE , the N arrative R eason for S eparation shall change to SECRETARIAL AUTHORITY with a corresponding SPD C ode of JFF 1 , the authority for discharge shall change to MILPERSMAN 1910-164 , and the reenlistment code shall change to RE-1 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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USMC | DRB | 2012_Marine | MD1201309

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