ex-LCpl, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to: HONORABLE
         Narrative Reason change to: NONE REQUESTED
        

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      19970822 - 19980621 COG         Active:  NONE

Period of Service Under Review:
Date of Current Enlistment: 19980622    Age at Enlistment: 17 (PARENTAL CONSENT)
Period of Enlistment: 5 Years 0 Months
Date of Discharge: 19991004     Highest Rank: LANCE CORPORAL
Length of Service: 01 Year(s) 03 Month(s) 13 Day(s)
Education Level: 12     AFQT: 69
MOS: 9900
Proficiency/Conduct Marks (# of occasions): 4.3 (1) / 4.3 (1)   Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214):     Rifle SS

Periods of UA/CONF: NONE

NJP: NONE SCM: NONE SPCM: NONE CC: NONE

Retention Warning Counseling: 1

- 19981109:      For your self-admittal of homosexuality.


NDRB Documentary Review Conducted (date):        20140109
NDRB Documentary Review Docket Number:   MD13-01306
NDRB Documentary Review Findings:        Characterization remained Uncharacterized; narrative code changed to Secretarial Authority; separation code changed to JFF1; and reenlistment code changed to RE-1A.
The NDRB did note administrative error(s) on the original DD Form 214:

         Block 28, Narrative Reason for Separation, should read: “HOMOSEXUAL ADMISSION”
        
The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, that the DD 214 be corrected as appropriate.

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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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Types of Witnesses Who Testified

         Expert:           Character:      

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual (MCO P1900.16E), effective 18 August 1995 until
31 August 2001, 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 contends that a characterization of Uncharacterized is improper because during her fifteen months in the Marine Corps, she performed her duties at a level that earned high praise and a promotion which under the principles of equity and propriety warrant an upgrade to Honorable.

Decision

Date: 20140609  PERSONAL APPEARANCE HEARING Location: Washington D.C.  Representation: Civilian Counsel

By a vote of 4-1 the Characterization shall change to HONORABLE .
By a vote of 5-0 the Narrative Reason shall remain SECRETARIAL AUTHORITY .
By a vote of 5-0 the Reenlistment Code shall remain 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 Board 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 Board completed a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one 6105 counseling warnings and no disciplinary actions. At the time of discharge, processing for separation was mandatory in accordance with the MILPERSMAN and Department of Defense Policy under the “Don’t Ask, Don’t Tell” law.

Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends that a characterization of Uncharacterized is improper because during her fifteen months in the Marine Corps, she performed her duties at a level that earned high praise and a promotion which under the principles of equity and propriety warrant an upgrade to Honorable. The Applicant testified and provided documentation and character witnesses supporting her in-service and post-service accomplishments. Per the Marine Corps Separation and Retirement Manual, separations initiated in the first 180 days of continuous active military service are entry level and properly categorized as Uncharacterized except in unusual circumstances. Relief denied.

Issue 2: (Decisional) (Board Issue) (Propriety) RELIEF WARRANTED. The Applicant was given an uncharacterized entry level discharge because the separation was initiated on 06 November 1998 which was within her first 180 days of service. At that time, the Applicant waived her right for an administrative board. On 12 February 1999, Defense Counsel, on behalf of the Applicant, requested to withdraw the waiver for the administrative separation board. On 22 February 1999, a memorandum from the Legal Services Support Section cited several irregularities with the notification process resulting in the decision by the Commanding General, Marine Corps Base Camp Lejeune, to approve the Applicant’s request to withdraw her waiver and grant her an administrative separation board. On 05 March 1999, the Commanding General directed that the Applicant should be properly notified of her separation and to document her election of rights. At that point, the Applicant returned from voluntary leave and an administrative board was formed. As of 19 December 1998, the Applicant was no longer in her first 180 days of service when the proceedings were restarted. Therefore the NDRB determined that it would be proper to provide a characterization of service for her discharge. Based upon the Applicant’s performance as documented in her service record, an honorable characterization is appropriate. Relief granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was improper at the time of discharge. Therefore, the awarded characterization of service shall change to HONORABLE and the narrative reason for separation shall remain SECRETARIAL Authority.

The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.secnav.navy.mil/mra/bcnr. 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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