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USMC | DRB | 2013_Marine | MD1300079
Original file (MD1300079.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121010
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:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20050122 - 20050125     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050126     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060815      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 68
MOS: 0621
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 :

- 20060214 :       For underage drinking

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 c ontends his discharge was based solely on the “Don’t Ask, Don’t Tell” policy , there were no aggravating factors , and he had a strong record of service .
2.       The Applicant contends his discharge is inequitable based on the Staff Judge Advocate’s (SJA) r eview of 27 July 2008.
3.       The Applicant seeks a change in his narrative reason for separation and separation code based on the repeal of the “ Don’t Ask, Don’t Tell” policy.
4.       The Applicant seeks a change in his reentry (RE) code to RE-1J based on the repeal of the “Don’t Ask, Don’t Tell” policy.

Decision

 Date: 20 1 3 0724            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 Reenlistment Code 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. 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 included 6105 counseling warning but no nonjudicial or judicial punishment s for violations of the Uniform Code of Military Justice. Due to the allegations of a homosexual act, which the commanding officer found to be credible, an investigation into the alleged misconduct was conducted. As a result of the investigation, it was determined that the Applicant had engaged in homosexual misconduct . As such, the Applicant was processed for administrative separation . When notified of administrative separ ation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The administrative board determined, by majority vote, that the preponderance of the evidence prove d all acts or omissions alleged in the notification and recommended that the Applicant be separated from the Marine Corps with a n Under Other Than Honorable Conditions characterization of service. A lthough the Separation Authority’s SJA recommended the Applicant receive a General (Under Honorable Conditions) characterization of service , the Separation Authority (Commanding General, 3rd Marine Logistics Group) ordered the Applicant to be discharged with an Under Other Than Honorable Conditions characterization for Homosexual Conduct. For reasons that are unclear to the NDRB, the Applicant’s DD Form 214 documents the Applicant receiving a General (Under Honorable Conditions) characterization of service.

: (Decisional) ( ) . The Applicant contends his discharge was based solely on the “Don’t Ask, Don’t Tell” policy, there were no aggravating factors, and he had a strong record of service. In accordance with Marine Corps Separation and Retirement Manual (MARCORSEPMAN) p aragraph 6207, which was in effect at the time of the Applicant’s discharge, and as a result of a command investigation, the Applicant was processed for administrative separation due to his propensity to engage in, admit to, and pursue a homosexu al relationship . The command investigat ion found that in addition to admitting homosexual tendencies to several personnel in his work section, he was witnessed conduct ing a homosexual act by affectionately kissing another male patron on 8 April 2006 at the Pink Cadillac Club . The NDRB determined the Applicant’s act of affectionately kissing another male in view of other patrons d id constitute a homosexual act committed “openly in public view , ” and this action constitutes a n aggravating factor per MARCORSEPMAN p aragraph 6207 .5 that is a significant negative aspect of the member ’ s conduct. Therefore , the NDRB determined the Applicant’s service was hon est and faithful but significant negative aspects of his conduct outweighed the positive aspects in his service record, and the awarded characterization of General (Under Honorable Conditons) was warranted. Relief denied.




: (Decisional) ( ) . The Applicant contends his discharg e is inequitable based on the SJA r eview of 27 July 2008 . The SJA recommended the Applicant be separated with a Gener al (Under Honorable Conditions) characterization based on the nature of the homosexual conduct, the Applicant’s P rofic iency and C onduct marks, and his lack of significant adverse administrative entries in his service record book. The Applicant contends that since the SJA did not recommen d an Under Other Than Honorable Conditions characterization , the re were no aggravating factors and so an Honorable discharge was warranted. Despite the SJA’s recommendation, t he S eparati on A uthority directed the Applicant be separated Under Other Than Honorable Conditions. While it is unclear how the Applicant ended up with a General (Under Honorable Conditions) characterization on his DD Form 214 , the NDRB does consider his act to have an aggravating factor of being “openly in public view” and warrants a General (Under Honorable Conditions) discharge. Relief denied .

: (Decisional) ( ) . The Applicant seeks a change in his narrative reason for separation and separation code based on the repeal of the “Don’t Ask, Don’t Tell” policy. In accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum regarding the repeal 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, the Applicant was notified of only one reason for discharge - Homosexua l Conduct (Acts) . Accordingly, the NDRB determined the narrative reason for separation will change to Secretarial Authority; additionally, the DD Form 214 shall be amended to reflect a corrected Separation Code designator of JFF. Relief granted.

4 : (Decisional) ( ) . The Applicant seeks a change in his reentry (RE) code to RE-1J based on the repeal of the “Don’t Ask, Don’t Tell” policy. 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 U.S. Marine Corps reentry code would be RE-1 A (eligible for reenlistment). The Applicant received an RE-4 reentry code due to early termination of his service for Homosexual Act . Due to the aggravating factor associated with the Applicant’s homosexual act, the NDRB determined the Applicant’s reentry code, RE-4, is pro per as issued. 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. The assigned 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.


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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