Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1301275
Original file (MD1301275.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130515
Characterization of Service Received:
Narrative Reason for Discharge: HOMOSEXUAL CONDUCT
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)       20050727 - 20060709     Active:  

Period of Service Under Review:
Date of Current Enlistment: 200 6 0710     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070917      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 39
MOS: 3000
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : UA: 20070813-20070912, 31 days / CONF:

NJP:

- 20070309 :       Article (Absence without leave , 20070215 - 20070305 , 18 days)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20070309 :       For unauthorized absence from 20070215 to 20070305

Administrative Corrections to the Applicant’s DD 214

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

          “ Pvt ”
         “ E-1 ”
         “ ”

The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, 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. 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 wants to reenlist and c ontends she did not commit any misconduct or engage in violent or aggressive behavior to warrant a General discharge.

Decision

Date : 20 1 4 0116            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 and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 18 days). The Applicant’s record shows she violated Article 86 again for 31 days from 13 August 2007 to 12 September 2007, but she was not punished prior to her administrative separation for Homosexual Conduct after she made a written statement to her command that she was a lesbian and requested to be administratively discharged from service. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: ( D ecisional) (Propriety/Equity) PARTIAL RELIEF WARRANTED. The Applicant wants to reenlist and contends she did not commit any misconduct or engage in violent or aggressive behavior to warrant a General discharge. The Applicant received a General (Under Honorable Conditions) characterization of her service at discharge. In accordance with 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 statements to her chain-of-command documented that she had engaged in homosexual relationships and created a rebuttable presumption that she had the propensity to engage in homosexual acts. The Applicant chose not to challenge or to rebut this presumption - in writing. Based on the statement made by the Applicant, her decision not to rebut any presumptions thereafter, and the commanding officer’s belief that the Applicant’s statements were credible, the Applicant was processed administratively for involuntary separation and was assigned a corresponding reentry code of RE-4. At the time of discharge, processing for separation was mandatory in accordance with the MARCORSEPMAN and Department of Defense Policy under the “Don’t Ask, Don’t Tell” law. Given the detailed documents of record, the NDRB determined the Applicant’s separation for H omosexual Conduct was proper and equitable at the time it was issued.
Characterization of Service: 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 reflected one retention warning and one NJP for being UA for 18 days in 12 months of service. Based on the evidence of record, the NDRB, by a vote of 5-0, determined the quality of the Applicant’s service was honest and faithful , h owever, significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record . As such, it is appropriate to characterize the service as General (Under Honorable Conditions). Relief denied.
Narrative Reason for Separation: 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 - Homosexual Conduct - and that no aggravating factors were involved. 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 corresponding Separation Code designator of JFF 1 . Relief granted.

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 her service for Homosexual Conduct while in service. The Applicant’s service record documents a retention warning and NJP during her 12 months of service. The NDRB determined that the record of service, coupled with the record of misconduct, would not warrant a recommendation for retention had the Applicant not been involuntarily separated for H omosexual Conduct . As such, in accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum, the NDRB determined the Applicant’s reentry code shall remain RE-4. 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 . 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

Similar Decisions

  • NAVY | DRB | 2013_Navy | ND1301077

    Original file (ND1301077.rtf) Auto-classification: Denied

    However, as a result of 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 characterization of the discharge to Honorable where Homosexual Admission was the only basis for discharge. Therefore, the NDRB voted to upgrade the Applicant’s characterization to Honorable.Narrative Reason for Separation: In accordance with the 20 September...

  • NAVY | DRB | 2012_Navy | ND1200302

    Original file (ND1200302.rtf) Auto-classification: Denied

    Narrative Reason for Discharge: In accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum regarding the repeal of “Don’t Ask, Don’t Tell, ” service discharge review boards should normally consider granting requests to change the narrative reason for discharge wherein Homosexual Admission was the only basis for discharge and no other aggravating factors were involved. However, pursuant to Public Law 111-321, and in accordance with the guidance...

  • NAVY | DRB | 2012_Navy | ND1200519

    Original file (ND1200519.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall HONORABLE.By a vote of the Narrative Reason shall .By a vote of the Reentry Code shall RE-1.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...

  • USMC | DRB | 2013_Marine | MD1301306

    Original file (MD1301306.rtf) Auto-classification: Denied

    Subsequently, an administrative board voted 3-0 that the preponderance of the evidence supported the Applicant’s Homosexual Admission and recommended she be separated with an Uncharacterized characterization. Given the lack of any misconduct or derogatory counseling entries in the Applicant’s service record and her being notified solely for separation due to homosexual admission, the NDRB determined that the relief, as requested, is warranted. ” Additional Reviews : After a document review...

  • NAVY | DRB | 2012_Navy | ND1201745

    Original file (ND1201745.rtf) Auto-classification: Denied

    Representation: 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 governmental affairs unless there is substantial credible evidence...

  • NAVY | DRB | 2012_Navy | ND1200075

    Original file (ND1200075.rtf) Auto-classification: Denied

    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. Narrative Reason for...

  • NAVY | DRB | 2012_Navy | ND1200050

    Original file (ND1200050.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Narrative Reason for Separation: 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. ” Additional Reviews...

  • NAVY | DRB | 2012_Navy | ND1201794

    Original file (ND1201794.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Narrative Reason for Separation: 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. ” Additional Reviews :...

  • USMC | DRB | 2012_Marine | MD1201128

    Original file (MD1201128.rtf) Auto-classification: Denied

    By a vote of the Reentry Code shall RE-1A.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. Given the detailed...

  • NAVY | DRB | 2012_Navy | ND1200272

    Original file (ND1200272.rtf) Auto-classification: Denied

    Narrative Reason for Separation: 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. Accordingly, the NDRB determined that the relief, as requested, is warranted; therefore, the Applicant’s reentry code shall change to...