ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:
         Reentry Code change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20010314 - 20010408     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20010409    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20020424     Highest Rank:
Length of Service: Year(s) Month(s) 16 Day(s)
Education Level:        AFQT: 85
MOS: 9900
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):    

Periods of UA/CONF:

NJP:

- 20020220:      Article 83 (Fraudulent enlistment, appointment, or separation)
         Article
         Awarded: Suspended:

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




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. The Marine Corps Separation and Retirement Manual, MCO P1900.16F), effective 1 September 2001 until Present, paragraph 6204, DEFECTIVE ENLISTMENT AND INDUCTION.

C. 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 requests changes to his DD Form 214 in accordance with the changes to the repeal of the Don’t Ask, Don’t Tell Policy.

Decision


Date: 20150625           Location: Washington D.C.        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

As a result of the Applicant’s ins-service diagnosis of mental health issues, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. The Applicant’s service record documents the Applicant was diagnosed with adjustment disorder with depressed mood and personality disorder, not otherwise specified, with borderline and depressive features while serving in the armed forces.

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 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 for of the Uniform Code of Military Justice (UCMJ): Article 83 (Fraudulent enlistment, appointment, or separation, one specification) and Article 107 (False official statements, one specification). The record also includes documentation of an eight day committal to a mental health ward due to adjustment disorder and depression in which he revealed that he had attempted suicide at the age of 15 and was a homosexual. Due to the Applicant’s homosexual admission, which the commanding officer found to be credible, it was determined that the Applicant had engaged in a homosexual conduct prior to entry in the Marine Corps and had the propensity or intent to engage in homosexual conduct in the future. As such, the Applicant was processed for administrative separation following the nonjudicial punishment for fraudulent entry into the Marine Corps. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) () . The Applicant requests changes to his DD Form 214 in accordance with the changes to the repeal of the Don’t Ask, Don’t Tell Policy. The Applicant received a General (Under Honorable Conditions) characterization of his service at discharge. In accordance with the Naval Military Personnel Manual (MILPERSMAN), (NAVPERS 15560C), Change 27 (effective 15 May 2009 until 25 April 2010), Article 1910-148, SEPARATION BY REASON OF 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 and mental health providers documented that he had engaged in homosexual relationships and created a rebuttable presumption that he 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, his 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 MARCORPSEPMAN and Department of Defense Policy under the “Don’t Ask, Don’t Tell” law. Given the detailed documents of record, the Applicant’s personal statement, the Applicant’s mental health evaluation, and the commanding officer’s statement in the administrative separation endorsement, the NDRB determined that the Applicant’s separation by reason of Homosexual Conduct (Admission), in accordance with Article 1910-148 of the MILPERSMAN, coupled with the misconduct or record, 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 NJP for fraudulent entry into military service and false official statements. Based on the evidence of record, and in consideration of the statements from the Applicant’s mental health records, the NDRB, by a vote of 5-0, determined that the Applicant’s service had been honest and faithful but the significant negative aspect of the member’s fraudulent enlistment outweighed the positive aspects of the member’s service record. As such, it is appropriate to characterize his 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 both Homosexual Conduct (Admission) and Fraudulent Enlistment.

Although the Applicant was diagnosed with adjustment disorder with depressed mood and personality disorder, not otherwise specified, with borderline and depressive features, he also failed to truthfully and fully disclose his pre-service mental health history, to include a suicide attempt at the age of 15, during the application process. According to regulations, an enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts that, if known at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the service member’s eligibility for enlistment or induction. Federal law requires all persons applying for enlistment in the military to disclose all sealed, expunged, or juvenile records. Therefore, the Applicant had an obligation to truthfully and fully answer all questions regarding his personal history. Based on the Applicant’s failure to truthfully and fully disclose information regarding his pre-service suicide attempt, his command determined that his enlistment was fraudulent. Although competent medical authority recommended separation based on his adjustment and personality disorders, his command chose to discharge him based on the fraudulent enlistment. Accordingly, the NDRB determined that the narrative reason for separation will change to FRAUDULENT ENTRY INTO MILITARY SERVICE; additionally, the DD Form 214 shall be amended to reflect a corrected authority for discharge (MARCORSEPMAN 6204.3) with a corresponding Separation Code designator. Partial relief granted.

Reentry Code: 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. Navy reentry code would be RE-1 (eligible for reenlistment). The Applicant received an RE-4 reentry code due to early termination of his service for Homosexual Admission and fraudulent entry into the military service. The Applicant’s service record documents his failure to properly reveal his suicide attempt at the age of 15. The NDRB determined that the record of service, coupled with the Applicant’s fraudulent entry, would not warrant a recommendation for retention had the Applicant not been involuntarily separated for his Homosexual Admission. As such, in accordance with the 20 September 2011 Under Secretary of Defense (Personnel and Readiness) memorandum, the NDRB determined that 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 with a corresponding SPD code and the authority for discharge shall change to MARCORSEPMAN 6204.3. 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 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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