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USMC | DRB | 2012_Marine | MD1201436

Original file (MD1201436.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120620

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20021118 - 20030218     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030219     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050104      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 53
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) LOA (3)

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.       The Applicant seeks to improve her employment opportunities.
2.       The Applicant seeks education benefits.
3.       The Applicant contends she should have r eceived a medical discharge.
4.       The Applicant contends she served h onorably.
5 .       The Applicant seeks a change to her narrative reason .

Decision

Date: 20 1 3 0410          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’s record of service included no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. Based on the Applicant’s admission to being a homosexual, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised her right to consult with a qualified counsel, but waived rights to submit a written statement and request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant seeks to improve her employment 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.

: (Nondecisional) The Applicant seeks education 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.

: (Decisional) ( ) . The Applicant contends she should have had received a medical discharge. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. While in the Marine Corps, the Applicant was diagnosed with an Adjustment Disorder with depressed mood, which is considered a Condition, Not a Disability for the service’s purposes. The decision by the VA to award a disability rating has no bearing on the Marine Corps discharge. However, the Applicant was not notified of separation proceedings for a Condition, Not a Disability and so the NDRB determined her discharge for Homosexual Admission was proper at the time. Relief denied.

Issues 4 -5 : (Decisional) ( ) . The Applicant contends she served h onorably and seeks a change to her narrative reason. Th e Applicant submitted her request for review of h er discharge following the repeal of the “Don’t Ask, Don’t Tell” policy, which was in effect at the time of her discharge. As such, the NDRB reviewed the discharge in accordance with the 20 September 2011 Under Secretary of Defense (Personnel & Readiness) memorandum regarding the repe a l of the “Don’t Ask, Don’t Tell” policy. In accordance with Paragraph 6207 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) , which was in effect at the time of the Applicant’s discharge, the Applicant’s in-service statement and corresponding official statement to h er chain-of-command that s he was a homosexual created a rebuttable presumption that s he engaged in, or had the propensity to engage in, homosexual acts. The Applicant chose not to challenge or to rebut this presumption. The documentation of record contains a complete copy of the supporting documents in the discharge action. At the time of

discharge, processing for separation was ma ndatory in accordance with the MARCORSEPMAN . Based on the statement made by the Applicant, h er 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 separation. Given the detailed documents of record, including the commanding officer’s preliminary inquiry and his statement in the administrative separation endorsement, the NDRB determined the Applicant’s separation by reason of Homosexual Admission in accordance with paragraph 6207 of the MARCORSEPMAN was proper at the time it was issued.

Characterization of Service: The Applicant seeks a change to the 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. The record shows the Applicant had no misconduct or other significant negative aspects that would have warranted a General (Under Honorable Conditions) characterization. Therefore, the NDRB determined the quality of the Applicant’s service met the standards of accepted conduct and performance of duty for military personnel, and it is appropriate to characterize that service as Honorable. Relief granted.

Narrative Reason for Discharge: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel & Readiness) memorandum regarding the repeal of the “Don’t Ask, Don’t Tell” policy, 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 narrative reason for separation 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, and there were no aggravating factors involved. Accordingly, the NDRB determined that relief in the form of a change to the narrative reason for separation to Secretarial Authority shall be granted; additionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MARCORSEPMAN paragraph 6214) and the corresponding SPD code of JFF1. Relief granted.

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 but not equitable at the time of discharge. The refore, the awarded characterization of service shall change to HONORABLE. 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 narrative reason for separation shall change to SECRETARIAL AUTHORITY with a corresponding SPD Code of JFF1. 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 | MD1201436

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