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Docket No. MD03-01359

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

, ex-CWO2, USMC
Docket No. MD03-01359

Applicant’s Request

The application for discharge review was received on 20030807.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Resigned.”  The Applicant requests a documentary record review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040526.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character and reason for discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/UNACCEPTABLE CONDUCT, authority: SECNAVINST 1920.6B

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“As also stated in LtCol B_’s declaration, I believe that:

“1.  when weighting the misconduct against my military record, a characterization of less than honorable is inadequate.”

“2.  my immediate acknowledgement of wrongdoing and acceptance of responsibility should have been taken into consideration in determining my character of service (is that not honorable?).”

“3.  in the process of reaching a determination on my character of service, my right to due process was violated, in that I was not provided the opportunity to rebut material added to my package by the SJA I MEF.”

“4.  the CG of I MEF recommended a general discharge based on his SJA’s speculation that the affair had been initiated at a previous command.  This notion is untrue.  I did not know Cpl R. B_ before being stationed at MCAS Yuma.”

“5.  despite having never spoken to or meeting me, much less knowing me on a business or personal level, the CG of I MEF disregarded the recommendations for an honorable characterization of service from three commanders that I either worked for or met and spoke with.”

“One final point I would like to bring up is the fact that on April 11, 2002, the President amended the Manual for Courts Martial with regard to the handling of adultery cases in the military.  By my understanding, under the amended manual, my misconduct barely qualifies as an offense.  I realize that I was discharged by the time the ammendment was approved but in light of the short amount of time between my discharge and the amended version of the MCM, I am hoping that the board will take the ammendment into consideration when reviewing my case.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Declaration of LtCol G_ S. B_, SJA, MCAS Miramar, CA on Aug 9, 2002 (2 pages)
Copy of DD Form 214
Paperwork pertaining to Article 15 and Applicant’s Military Records (122 pages)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USMCR(J)		910125 - 910414	COG
	Active:   USMC		910415 - 941017	HON
					941018 – 980325	HON
					980326 – 990131	HON(To accept commission)

Period of Service Under Review:

Date of Commission:  990201	Date of Discharge:  020405

Length of Service (years, months, days):

	Active:  03  02  05
	Inactive:  None

Age at Entry:  30

Education Level:  15		AFQT:  91

Highest Rank:  CWO3

Final Officer Performance Evaluation Averages:  All officer performance reports were available to the Board for review. 

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR(2), NDSM, GCM(2), MM(3), LoA, MUC(2), Rifle Marksman Badge, Pistol Sharpshooter Badge

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/UNACCEPTABLE CONDUCT, authority:  SECNAVINST 1920.6B, (To be administratively corrected).

Chronological Listing of Significant Service Events:

010904:	Applicant notified of intent to conduct an Article 15, UCMJ, hearing for violation of Article 134 (adultery) and notified of his rights.  [EXTRACTED FROM INFORMATION PROVIDED BY THE APPLICANT.]

010905:	Applicant, having consulted with lawyer, elected not to demand trial by court-martial and accepted punishment under Article 15, UCMJ.  [EXTRACTED FROM INFORMATION PROVIDED BY THE APPLICANT.]

010921:	Applicant’s request for resignation with an Honorable characterization of service, in lieu of administrative separation.  [EXTRACTED FROM INFORMATION PROVIDED BY THE APPLICANT.]

011004:	NJP for violation of UCMJ, Article 134:  Adultery- between April 2000 and Dec 2000, Applicant, a married man, engaged in an ongoing adulterous affair with a female junior enlisted Marine.
Awarded a punitive letter of reprimand.  Not appealed.

011004:	Applicant issued Punitive Letter of Reprimand.

011031:	Command, Marine Corps Air Bases Western Area, San Diego, CA, reported Applicant’s NJP to the CG, I MEF, recommended that the Applicant not be required to show cause for retention at a Board of Inquiry.  Further advised that Applicant has submitted a request for resignation in lieu of administrative separation processing and recommended the request for resignation be approved and his service be characterized as honorable.

011128:	Applicant’s Statement of events.  [EXTRACTED FROM INFORMATION PROVIDED BY THE APPLICANT.]

011210:	CG, I MEF, forwarded the NJP report to the Commandant, Marine Corps, concurring with the recommendation that Applicant not be required to show case for retention, but disagreed the with recommendation that Applicant be discharged with an Honorable, but recommended he be discharged with a General (Under Honorable Conditions).

020211:	Commandant, Marine Corps, recommended to the Secretary of the Navy, discharge with a General (Under Honorable Conditions) by reason of unacceptable conduct.

020228:	Assistant Secretary of the Navy (M&RA) approved and directed the Applicant's discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020405 with a General (Under Honorable Conditions) due to unacceptable conduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issues 1-2.  The Applicant states, “when weighting the misconduct against my military record, a characterization of less than honorable is inadequate.”  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for Article 134, Adultery, committed over the course of eight months, from April to December 2004, thus substantiating the misconduct for which he was separated.  A characterization of service as general (under honorable conditions) is warranted when a record of service constituted a departure from that expected of a Marine.   The evidence of record does not demonstrate the Applicant was not responsible for his actions or should not be held accountable.  Relief is denied.

Issues 3-5.  CG, I MEF recommended a general discharge based on “an adulterous relationship between a married officer and a junior enlisted woman married to a junior enlisted Marine that lasted eight months” and noted “I do not agree with the recommendation that Chief Warrant Officer 2 R_ (Applicant) be discharged with an Honorable characterization.”  The CG, I MEF was required to consider recommendations from subordinates, but was not bound or required to follow those recommendations.  There is no indication of a violation of due process or that the CG I MEF abused his discretion in this matter.  Relief denied.

To permit relief, an error or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.

The board considered Applicant’s actions in light of recent revisions to the Manual for Courts-Martial and determined that they still constitute a violation of Article 134 of the UCMJ.  Accordingly, equitable relief on this issue is denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 13 Dec 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023	

BOARD MEMBERS RECORD OF VOTE

______________________________________________________________________________
NAME			CHARACTER OF SERVICE	REASON FOR DISCHARGE

T. B. GALVIN, COL, USMC      	NO CHANGE			NO CHANGE
Presiding Officer
 
B. DUNCAN, MAJ, USMC		NO CHANGE	                        NO CHANGE
Member
 
S. OSBORN, LT, USN  	            NO CHANGE			NO CHANGE
Member
 
M. CUNNINGHAM, LT, USNR       	NO CHANGE	             	NO CHANGE
Member
 
J. ZWILLER, CAPT, USMC		NO CHANGE			NO CHANGE
Recorder

Recorder’s Signature:_____________________________________________

Presiding Officer’s Signature:_______________________________________

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
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