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

ex-LCpl, USMC
Docket No. MD04-01026

Applicant’s Request

The application for discharge review was received on 20040607.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029.  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 of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated:

1.  “Dear Sir or Ma’am,

I R_ M_ L_ (Applicant) was discharged from the Marine Corps on December 13, 2001 with an Other Than Honorable Discharge (OTH).  This discharge was given in response to a request for a separation in lieu of court martial.  In this letter I will thoroughly explain why my current OTH discharge should be upgraded to a discharge that reflects service under Honorable conditions.

I joined the Marine Corps at 18 years old, after many events in my life lead me to seek a better future for myself I learned that the Marine Corps is a family full of history and tradition.  I was excited and felt safe joining the Marine Corps.  For the first time in my life, I was proud of myself and felt a sense of accomplishment and belonging.

Shortly after boot camp in my Military Occupational Specialty School in Twentynine Palms I was married to another Marine I barely knew.  These events took place in an effort to fill the void of homesickness and a direct response to the life changing events that lead me to join the Marine Corps in the first place.  I was young, alone, scared, and reached out to the first sense of security I found.  Being a young female Marine is not as easy and as enlightening as it is made out to be.

My husband and I flew off to Okinawa Japan, and assigned to Comm. Company on Camp Courtney.  I was excited to finally be in the fleet.  To my dismay, everything I sought out from the Marine Corps was destroyed and the Marine Corps idea of family was far from sight.  The other female Marines in my platoon treated me poorly the moment I was introduced.  I didn’t understand why.  I clung on to my marriage as the only support system I had.  Soon after arriving at my new unit, my husband and I were separated, due to operational commitments.  I fought to move out in town, and struggled for everything.  During my stay in this unit, I was raped by an NCO, sexually harassed by many superiors, and even molested while I was seven months pregnant by my own SNCOIC.  I was horrified.  I had no one to talk to and no support system.  If I had tried to tell anyone, I feared their disbelief.  Call it as you may, I had no rank, and to put it bluntly I was scared as hell.  I was new to the military way of life, and any impression I ever had was destroyed.  I didn’t even tell my husband, because I feared he would leave me, and he was the only support I had.

I requested a tour curtailment which would bring me back to the states 10 months into my 12 month tour.  My husband also requested one, so that he could assist me in delivery and to set up a home for our family.  We had no furniture or anything, when I was to arrive in the states; I would have had to do all of that by myself over 8 months pregnant.  Our Commanding Officer (LtCol R_, E_) never sent my husband’s request to CMC, which by Marine Corps Order is required to go regardless of their approvals.  I was ordered to go alone.  I thought the Marine Corps was supposed to be a family and take care of me.  My husband and I were called into LtCol R_'s office where he asked me “what I would do if I didn’t have a husband?” my answer was simple “I wouldn’t be pregnant”.  Still he refused to let my husband accompany me home, and said that the “units mission came first.”

At eight months pregnant I was sent to my next command, which would ultimately be my last.  My husband was able to accompany me after a change in command.  The Major that replaced LtCol R_, came to me personally two weeks before I was scheduled to leave, and informed me that he was sending my husband home.

Upon reaching MACS-1 (rein), I was relieved and tried to put the past behind me, and be excited about the chance to start over with my family and new command.  But it was only months after delivery that the pain and guilt of the things that happened to me in Okinawa began to consume me.  My marriage began to deteriorate.

I was approached at the riffle range by the range safety officer (CWO2 R_, M_ N_).  He would make useless conversation with me, as I awaited my turn to fire, then would stand behind me and watch as I fired.  After the range was over, he began to email me, and ultimately pursue me.  My marriage was in shambles and I welcomed the attention.  I was 20 years old by now, and unaware of the repercussions.  CWO2 R_ showed up at my home one night, when he knew my husband wasn’t going to be there, and persuaded me to have intercourse with him.  I was nervous, and a bit unaware of what I was doing.  I tried avoiding him after that, but he would call and email me several times at work, and once he even chased me down in his truck while I was on my way to work, to find out why I wouldn’t talk to him.

About a month later, I found out I was pregnant.  I knew it had to be the CWO2 s because my husband had been at WTI for six weeks.  I informed my husband about the pregnancy, but not the situation surrounding it.  We were shocked, because our daughter was only 6 months old.  I informed the CWO2 who was married with a 7 month old of his own.  He wanted me to terminate the pregnancy.  I told him that I would not.  He also threatened that if I had told his family about the baby, or the Marine Corps that he would take my child from me, or worse.

I lived the next 9 months, confused, hurt and scared.  My life was a mess, and just kept getting worse.  I didn’t know how to fix it.  By the next years WTI, I had had enough and couldn’t take the deception, and pain anymore.  I confessed everything to my husband, to include all of the horrible things that had been done to me in Okinawa.  I was handling two babies, a severed marriage, rape, molestation, and ultimate devastation.  I didn’t know what to do, so I took it to my Commanding Officer (Captain G_, A_).  I told her only about the child and my indiscretions.  I knew I would be adjudicated for my actions, and chose to go further with the situation.  I sought out help from my unit, in hopes that they would help me to establish paternity and help to get me counseling.

I was adjudicated for my actions on July 6th 2001, receiving reduction in rank and suspended forfeiture of pay.  Five months later, the CWO2 received a punitive letter of reprimand.  That’s all he received.  I was never offered counseling, or help to establish paternity.  My son from this affair is now going on four, and paternity has never been established.  I have not spoke or seen the CWO2 in almost 3 years, and he has never taken responsibility to his possible child.

Now an outcast in my unit, I obtained another job outside of the Marine Corps to help support my family.  Due to my reduction in rank, I was unable to financially support my two children.  My husband and I separated and were divorced by August 15th 2001.  Through my new job, I met Sergeant Major G_, G_ A_.  We became friends, and often would run together on base.  I informed my command of this friendship, and they didn’t have a problem with it.  SgtMaj. G_ was also married, and spoke of troubles that him and his wife had.  It was nice to have someone to relate too, who wasn’t judging me.  I confided everything to him; I spoke of my indiscretion, and the trial some times that I endured in Okinawa.  Our relationship advanced, and he used my weakened state of mind to seduce me.  I fell for it and him very hard.  I was manipulated into a situation, and believed that he was leaving his wife, and seeking a life with me.  SgtMaj. G_, pulled out all the stops, he wined me, dinned me, and filled my head with the most comfort that I have ever had.  He flaunted our relationship, and would gloat to other Marines and even to my new Sergeant Major (SgtMaj. J_, A_).

Soon the investigation started, and although he continued to see me and flaunt our relationship, he began asking me to lie for him to save his career.  He said that if I didn’t he would place the blame on me, and leave me.  To be honest, I had already lost enough.  I also saw how hard I was punished for the last incident, and how CWO2 received very little punishment in comparison.  I talked to the investigators, and told them the story that SgtMaj. G_ had told me to tell them.  I never signed the statement.  For a long time I heard nothing.  Things that SgtMaj. G_ had promised me were not being fulfilled, and once again I was in a situation I didn’t know how to get out of.

I went to the investigators and told them I wanted to tell the truth, and I did.  I made and signed a statement.  This confession turned into a graphic 5 hour interrogation.  The questions I was being asked sought types of sexual acts I engaged in and the amount of times the certain acts were performed.  These questions were irrelevant and subjected me to further unnecessary embarrassment.

This time the senior Marine, SgtMaj G_ was adjudicated first.  He was relieved from command and agreed to retire honorably with full benefits.  He was given a summary court martial.  Knowing this information, my command sought out a special court martial for my adjudication process.  I am not sure why they chose to try me with a significantly higher court martial.  In both cases, I had been punished more severely.

I had two children to think of I was 22 years old.  I ruined the last 4 years of my life in an attempt to be a part of something so prestigious.  I had been ridiculed, raped, molested, embarrassed, and destroyed my first year in the Marine Corps.  I had two months until my EAS.  I asked if I could just get out at my EAS, but my command refused.  If I had waited until the court martial proceedings, I would have been in well past my EAS.  I needed to get out of my situation.  I was devastated, and didn’t want to subject my family to anymore pain.  I requested a separation in lieu of trial by court martial.  In a letter requesting this separation I requested that my discharge be one under honorable conditions.  I needed my Montgomery GI Bill.  I was only 22, and my whole life was ahead of me.  I would need those benefits, to pick of the pieces that were left of my life.  My assigned attorney (Major M_, K_) insisted that was my only option, after speaking to my Commanding Officer.  I went to equal opportunity, I wrote congress, and I did everything in my power to point out my unfair treatment.  My punishments were unjust.

I was discharged December 13, 2001 from the Marine Corps with an Other Than honorable discharge.

I am now almost 25 years old.  My children are still under the age of five.  I have re-married my ex-husband.  I am fully aware, of what my actions have caused, and take full responsibility for them.  After a long time recuperating from the four years I spent in the Marine Corps, I know that only I am to blame for my actions.  I will strive for the rest of my life to come to terms with the impact this has all left on my life.  I am not asking you for pity, or for you to feel bad about what I did with my life.  I am asking for the chance to make my life better, to provide a more desirable future for my children.  I am in college now, and intend to continue my education at law school.  With the ultimate goal of becoming an attorney in mind, I need this upgrade.  My current discharge could prohibit me from being eligible to take the bar exam.  Moreover, I need to know that I served my country honorably, because my indiscretions did not effect how I performed as a Marine.  I didn’t commit any violent crimes, hurt any fellow Marines, or give up on my career.  I had a consensual relationship with the wrong person.  I am now considered something other than honorable to the government.  My treatment and punishments were unjust.

In conclusion, I ask you to take in consideration several of the details provided in this letter.  I was very young, and went through years of abuse.  I know what I have done is wrong.  I am the only one in either of these situations that has suffered such severe repercussions, that have lead me to be Other Than Honorably discharged.  I am asking you to give me back what’s left of my dignity and Marine Corps career.  Please upgrade my discharge to one under honorable conditions, not because you feel pity for me, but because my treatment was unfair and my punishment was unjust.

With Deepest Regards,

R_ M_ L_/B_ (Applicant)”

Documentation

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

Copy of SF 180
67 pages from Applicant’s service record
Ltr to Hon Mr. Houghton, 3 pages
Ltr to J_ D_
Ltr frm Rep Amo Houghton, w/ 2 pg enclosure
Ltr frm Applicant’s parents to Command
Court-Martial Summary of Proceedings ICO SgtMaj G_
Ltr frm Sgt N_ B_
Ltr frm SgtMaj A_J_
Ltr frm GySgt R_ W_
Ltr frm Mercy Hurst College
Copy of DD214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive: USMCR(J)		980224 - 980308	COG

Period of Service Under Review:

Date of Enlistment:  930809		Date of Discharge:  011213

Length of Service (years, months, days):

	Active:   03  09  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  52

Highest Rank:  Cpl			MOS:  0621

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (8)			Conduct:  4.3 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, MUC, SSDR, RM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

981123:	Counseled for deficiencies in performance and conduct.  [Using provoking language and gestures against a member of this command.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

010706:	NJP for violation of UCMJ, Article 134:
SNM, a married woman, did at MCAS Yuma, on or about 2300 Mar 2000 wrongfully have sexual intercourse with M_ R_, a married man not her husband.
Awarded forfeiture of $500.00 per month for 2 months reduced to E-3.  Forf susp 6 mos.  Appealed 010809.  Appeal denied 010810

011030:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial.  In the request the Applicant noted that her counsel had fully explained the elements of the offenses for which she was charged and that she understood the elements of the offenses.  She further certified a complete understanding of the negative consequences of her actions and that characterization of service would be under other honorable conditions.  The Applicant admitted guilt to the specifications under the charges.  Specifically:  Charge I, Article 107.  In that [Applicant] did on board MCAS Yuma, on or about 21 August 2001 with the intent to deceive, make to Investigator Vasquez an official statement to wit:  that she did not have an adulterous relationship with SgtMaj G_ G_ USMC, which was totally false and was then known by aforesaid [Applicant] to be so false.  Charge II, Article 134.  In that [Applicant] did on active duty, at the time a married woman on or around Yuma, AZ, Phoenix AZ and Calexco, CA from about March 2001 to About August 2001, on divers occasions, wrongfully have sexual intercourse with SgtMaj G_ G_, a married man not her husband.

011120:	SJA review determined the case sufficient in law and fact.

021127:	GCMCA [CG, 3d MAW] determined that Applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under other than honorable conditions by reason of conduct triable by courts-martial.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011213 under other than honorable conditions in lieu of trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  On 20011030, the Applicant requested discharge for the good of the service to escape trial by court-martial.  In the request the Applicant noted that her counsel had fully explained the elements of the offenses for which she was charged and that she was guilty of the offenses.  She further certified a complete understanding of the negative consequences of her actions and that characterization of service could be under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  Relief denied.

An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Article 134 of the UCMJ for adultery.  In addition, the Applicant admitted guilt to committing adultery on numerous occasions with a second married Marine when she requested separation in lieu of trial.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
01 September 2001 until Present.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134, adultery.

C.  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.  

D.  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.

E.  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