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Docket No. MD05-01228

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

FOR OFFICIAL USE ONLY

 ex-Capt, USMC
Docket No. MD05-01228

Applicant’s Request

The application for discharge review was received on 20050714.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060216.  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 by reason of unacceptable conduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or from an attached document/letter to the Board:

“I request my discharge be upgraded to HONORABLE to reflect my true service.  The OTH was unfair, unjust and illegal.  Please see attached General Brief with Issues 1-16, and Enclosures 1-34 for specific details.

I.  The Marine Corps and Secretary of the Navy denied Applicant the legally required examination of all his records prior to issuing an Other Than Honorable Discharge rendering the discharge invalid.
In July 2003 the Applicant requested from the Marine Corps “All documents, letters, and/or paperwork considered in determining his characterization of service.” For record purposes this request under the Freedom of Information Act was sent via the Applicant’s congressman.  (Enclosure (10)) Over three months later (21 Oct 03), well past the statutory time limit, the Marine Corps responded acknowledging what was requested and stating that all documents requested were enclosed.  The reply was unequivocal that “all documents, letters and/or paper work” that were considered in deciding an OTH Discharge were merited was enclosed.  Enclosure (11).
The letter stated that all the documents requested, i.e.  all documents on which OTH was based, were sent to the congressman after a record search of over three months duration.  That letter contained the following:
1.  An Email of 31 Mar 03 from Captain M_ stating the Command report of NJP was incorrect.
2.  A letter from the Commandant’s Staff Judge Advocate to the Assistant Secretary of the Navy (M&RA) acknowledging that part of the endorsement upon which the Assistant Secretary based his decision was in error.  This letter also contains a serious error in stating that the Applicants resignation was to avoid trial by General Court Martial.  That is simply not a true legal characterization of the resignation.  What makes this letter truly prejudicial and requiring the character of the discharge be upgraded is that although the legal error was known to CMC as early as 25 Mar 03 this Staff Judge Advocate did not act to correct the error until May 12, 2003 which was three days after Captain M_(Applicant) was already discharged.
3.  There is a routing slip dated April 10, 2003.
4.  Included was a document entitled in the enclosure list as “CMC HR 1920 JAMO of 20 Mar 03” which in fact is the 1^st Endorsement to the document listed as encl (5) to that letter.
5.  The last attachment is listed as “encl (5) CG MCRD/ERR ltr 5812 SJA of 25 Feb 03 w/encls” An examination of that document reveals that it had eight enclosures but not all the enclosures had been sent to the Applicant via the congressman.  (Missing are enclosures (2), (3), (4), (6) and (7).
This reply of 21 Oct 03 is conclusive in itself that the characterization of the discharge rendered should be changed to Honorable.  The Marine Corps, in that response, in effect admits that, although Mr.  M_(Applicant) has over seven years of Honorable Service and numerous decorations and awards, they considered nothing favorable in his behalf and forwarded nothing favorable in his behalf to the Secretary of the Navy prior to the OTH discharge.  This is not only unjust but in violation of regulations that require his entire record be considered in characterization of service.  Encl (5) of SECNAV Instr 1920.6B outlines the guidelines for characterization of service.  It is unequivocal that the characterization must be based on the “officer’s record of performance and conduct including particularly the acts of omissions giving rise to separation for cause.”  The Marine Corps reply of 21 Oct 03 makes it clear that only the “Acts and Omissions” were considered and the Applicant’s outstanding record of performance and conduct were not considered nor even forwarded.  Enclosure (2) to this appeal clearly states that it “contains all the documents, papers and correspondence on which the OTH was based”.  It is then obvious that documents, which by law had to be considered was not.  In fact, the Commanding General had in his possession a letter praising Captain M_(Applicant) and his work even while the legal process was going on.  This letter of praise was written by M_(Applicant)’s immediate commanding officer to the General, yet it was not forwarded with the other documents.  It seems that only the unfavorable was highlighted.  In addition the laudatory comments of Col. T_ USMC and his appeals do not seem to have been forwarded either (Encl (12)).  When the report of NJP reached the Show Cause Authority/CMC level no independent inquiry was initiated as required by law.  The report was merely endorsed.  In fact Para 4 of that 1^st endorsement enumerates what was considered at CMC level.  It is clear in that paragraph that the past and present fitness reports and personal awards were never requested nor considered.  That paragraph makes it clear that only very limited items were considered (Encl (13)).  This is an absolute violation of due process in how the characterization of discharge must be arrived at.  (Paragraph 4 of the _1st endorsement, as discussed elsewhere, contains outrageous and unsubstantiated remarks that should render the whole recommendation void.) In addition the statements in Paragraph 3 make it seem that Captain M_(Applicant) was found guilty of adultery when all the proof shows he was not and in fact exonerated of those charges.
The subsequent cursory circling of the word “Approved” by the Assistant SECNAV not only sealed Captain M_(Applicant)’s fate but it denies anyone the knowledge of just what he considered in arriving at his decision.  Captain M_(Applicant) is entitled to know that.  This is especially true since the Marine Corps admits after his discharge that the SECNA based his decision on faulty charges sent by them.  The CMC letter to Representative B_, as well as Para 4 of the 1^st end, attest to the fact that Captain M_(Applicant)’s complete records were never considered at any level prior to discharge.  Captain M_(Applicant) did attempt to withdraw his resignation and have his total record considered during the procedure but no one ever acknowledged receiving it; reading it; or even acting on it (Encl (14)).  As was done with later correspondence, from other sources, it all seems to have been ignored.  This is another document that was never included when H.Q.M.C.  said it had supplied M_(Applicant) with all letters, correspondence and documents concerning his discharge (Encl(11)).
It is obvious that the SECNAV Instruction has been ignored and Captain M_(Applicant) never afforded the proper consideration necessary to characterizing his discharge.  The discharge should be upgraded on this basis alone and an Honorable Discharge awarded.
In addition, it is curious that although the chain of command is required to weigh the Captain’s whole record, it is never discussed as to why he was good and competent enough to remain in command until his discharge date.  Yet his discharge is based on conduct, which no one thought merited his relief from duties.  It is inconceivable to issue an OTH discharge to an officer, who on the date of discharge, is still in the same unit and had command over the same individual he is accused of having an inappropriate relation with.  It must be noted that the command itself may have violated regulations by keeping him in command.  As mentioned elsewhere the refusal to relieve him of command until discharged is an indication that all levels of the chain of command did not really consider Captain M_(Applicant) a threat, but used him as a foil to make a point.  The fact that he was kept in command throughout this whole procedure justifies an Honorable Discharge for honorable service.

II.  The orders in Title 10 U.S.  Code; DOD Instruction 1332.40 and SECNAV Instruction 1920.6B were violated rendering the OTH Discharge void.
The Secretary of the Navy did not originate the policies and procedures ordered for the separation of officers.  He was directed to establish them by Title 10 of the U.S. Code which was again set forth in DOD Instruction 1332.40 of September 16, 1997.  Reading these originating instructions together with SECNAV Instruction 1920.6B makes it clear that the Marine Corps has misinterpreted the intent and purposes of the mandated procedures.  (See computer disc encl (1))
The Separation Procedures are not a waiveable right of an individual.  The procedures are a mandate to each service on how they, the military service, will proceed in separating an officer.  The Marine Corps has not been offered a choice or given “wiggle room.” The Secretary of the Navy, through the Department of Defense and the U.S.  Code, has told them what they must do.  They did not do it.  In order to make sure the regulations were being correctly interpreted, a letter was written to U.S. Rep. S_ I_, a member of the Armed Forces Committee, concerning exactly what DOD mandated the services to do prior to discharging an officer for misconduct.  Encl (15) is Rep. I_’s reply which clearly states what a service “shall” do when they find allegations against an officer are serious enough to separate him.  These actions clearly are a mandate to the service and not something the officer can excuse them from doing.
SECNAV Instruction 1920.6B binds the Marine Corps on how officers will be separated.  This is discussed again in a following issue.  The Secretary of the Navy is clear in enclosure (4) paragraph 9 of SECNAV Instr 1920.6B that no officer will be discharged without being offered a Board of Inquiry.  Captain M_(Applicant) was never offered a BOI so his OTH discharge was illegal and without due process.  Captain M_(Applicant) was told in a Pretrial Agreement that if he requested a BOI he would be court-martialed.  This is not a waiver it is a threat.  Also it was not for him to request one.  It was for the Show Cause Authority to convene one and notify Captain M_(Applicant) in writing concerning the reasons for it.  Encl (1) (6) & (15).  Enclosure (4) Paragraph 9 of SECNAV Instruction 1920.6B was clearly violated and the discharge should be voided and an Honorable one issued in its place.
Attached are excerpts from the DOD Instruction and Title 10.  (Enclosure (4) & (5).) It is clear that the Show Cause Authority must examine the case and, if he thinks the officer should be separated, he convenes a Board of Inquiry.  This is not a Board that a respondent can waive, for it is not his Board.  It is a Board that must be convened by the service before an officer can be separated.  The Board must be convened by the Show Cause Authority as ordered by the Department of Defense through the Secretary of the Navy.  If the officer does not show up the Board still proceeds.
The U.S.  Code; Department of Defense; and Secretary of the Navy mandated these procedures to ensure uniformity of policy and equal treatment of all officers being separated.  It revolves about Show Cause Officers that are mandated to follow set procedures.  The DC/S (M&RA) is designated as one Show Cause Authority for the Marine Corps.  It seems that no one notified him of the offenses as required, during all that time between alleged conduct and the report of NJP.  The documents sent by HQMC to Rep. B_ contain no notification of the Show Cause Authority prior to NJP report which is a violation of Marine Corps Orders as well as higher authority.
Upon receiving the NJP Report the Show Cause Authority was mandated to follow the DOD and SECNAV procedures.  He did not.  He chose to endorse an NJP report which in effect was an attempt to by pass the mandates of higher authority.  DC/S (M&RA) joined in a “Resignation in lieu of Administrative Proceedings”.  This method to avoid BOI responsibilities is not sanctioned anywhere in the directives of higher headquarters.  Accordingly, the mandated policies and procedures were not followed and the OTH discharge void.  A following Issue is more specific as to the violation of the SECNAV Instruction.
(It is worth noting that the command also completely ignored the JAG Manual directions to the CA that states clearly in Para 205 b (2) (b) - “Individuals whose conduct or performance of official duty is being questioned can best protect their interests by being given the rights of a party at a court or Board of Inquiry.”)

III.  SECNAV Instruction 1920.6B governs the separation of all Marine and Navy officers.  Its procedures were ignored rendering the subsequent discharge invalid.
This issue shall be kept brief since it is dispositive of the Appeal by itself.  Other issues rendering the procedure invalid are also included elsewhere for the Board’s consideration, even though the process outlined herein, in itself, renders the procedures illegal.
1.  SECNAV Instruction 1 920.6B governs the Marine Corps in what procedures must be used to discharge an officer.
2.  The officer exercising General Court jurisdiction at Parris Island sent a Report of Non Judicial Punishment to the Commandant of the Marine Corps (JAM) which in Para 8 states:
“8.  Captain M_(Applicant) has submitted a request for resignation in lieu of administrative separation processing for cause in accordance with references (e) and (f).”
3.  Reference (e) is SECNAV Instruction 1920.6B, which is the controlling order in the area of Administrative Separation of Officers for Cause.  It is clear and unequivocal as to what procedures must be followed.  They were not.  The Secretary of the Navy’s order neither mentions, anticipates, nor allows for a “Resignation in lieu of administrative processing for cause.”
4.  The DC/S (M&RA) who is a Show Cause Authority does not fulfill his many duties as dictated under SECNAV Instruction 1920.6B but merely endorses the report of NJP to the Assistant Secretary of the Navy, (instead of initiating his own action as required).  This is a violation of the Secretary of the Navy’s order of what must be done as well as Title 10 and the DOD instruction.
5.  The Assistant Secretary of the Navy did not require the Marine Corps or himself to fulfill the legal duties imposed on them by SECNAV Instruction 1920.6B, but he merely circles the word “Approved”.
The clear and blatant violation of SECNAV Instruction l920.6B renders the procedures used null and void, and therefore the discharge issued there under invalid.  Subsequent enclosures also contain excerpts from SECNAV Instruction l920.6B relevant to this and other issues.

IV.  The Resignation, used to discharge Applicant is contrary to Marine Corps and SECNAV regulations and can not be accepted.  The OTH Discharge is therefore invalid.
The meaning of a document is determined by what is written within its four corners, without reference to what might have been intended.  It is the language as written that governs.  As stated before, it is well established legal principle that any ambiguity in a document is construed against the author of the document, i.e. the author of a document is bound by what is written.
Captain M_(Applicant) submitted a resignation with the report of NJP which had been prepared and typed by someone else.  (Prior to his discharge he withdrew it and submitted his own end (14).  There is no mention of the second resignation even in the documents of discharge sent after discharge to Applicant.)
In any event the resignation used requested an Honorable Discharge, but as typed acknowledged an Other Than Honorable could be awarded.  This OTH language was wrong and is not allowed in this type resignation.
Para 4104 of MCO P1900.16F (MARCORSEPMAN) is clear in its language that the resignation “   shall contain the appropriate statement below corresponding to the type of discharge requested.” (Enclosure (16)).  Captain M_(Applicant) “REQUESTED” an Honorable Discharge in his resignation and therefore the appropriate statement in sub Para 4104.3a should have been used, i.e. he could only be issued an Honorable Discharge.  He never “REQUESTED” an OTH Discharge so Para 4104.3c should never have been in his letter of resignation.  The operative word is “REQUESTED”.  The MARCORSEPMAN is clear that the type of discharge is dependent on the “REQUEST” of the officer and not the command recommendation.  That is what the Marine Corps wrote and a disclaimer cannot be hidden in some footnote not mentioned in the order itself.  Please note that this contention does not acknowledge that this Marine Corps procedure is legal in itself.  It is not.  The SECNAV Instruction 1 920.6B and higher authorities require the Show Cause Authorities to immediately “initiate” show cause proceedings and somewhere during those proceedings an officer can request discharge.  The Marine Corps procedures are contrary to the orders of higher authority and must be declared void.
Para 11 a. (3) of Sec Nay Inst 1920.6B explicitly states that resignations will be denied if the “requested” characterization is not consistent with its enclosure (5).  In this case Captain M_(Applicant) “ requested” an Honorable Discharge.  This is certainly not consistent with an Other Than Honorable.  The Honorable Discharge, as requested, should have been granted or the resignation denied.  This is why violating the Show Cause Procedures has led to other invalid actions.
In addition, still another issue will show that this type resignation is a violation of SECNAV Instruction l920.6B and illegal.  Para ic (3) of encl (2) of the SECNAV Instruction places Resignations for Cause under its enclosure (4).  That enclosure only permits resignations after Board action.  There was no Board action in this case so a resignation should not have been permitted.

V.  The Marine Corps did not perform its duties and responsibility as mandated under SECNAV Instruction 1920.6B rendering the OTH Discharge illegal and invalid.  In addition, the Marine Corps orders used in the procedure are contradictory to and violate the SECNAV Instruction.
The first premise that must be accepted is that the U.S. Marine Corps is bound by the authority of the Secretary of the Navy as to orders that are legal and within his jurisdiction.  In Dec. 1999 the SECNAV issued an order that declared the official policy and procedures that has to be followed to discharge all officers both Navy and Marine Corps.  In Para 13b of SECNAV Instruction 1920.6B the Secretary of the Navy ordered the Commandant of the Marine Corps to implement the policies, standards, procedures and goals of the Secretary’s order and to revise or cancel all conflicting guidance.  Elsewhere in the order he appointed the Marine Corps DC/S (M&RA) as the Show Cause Authority as well as all commanders as long as they were at least a Lt. General.  The appellant contends that the Marine Corps did not bring MCO P5800.16A (LEGADMINMAN) of 3lAug99 into compliance and later when it wrote MCO P1900.16F (MARCORSEPMAN) of 30May200l it did not conform it to the policies and procedures that the Secretary of the Navy mandated.  An examination of all three orders is in order beginning with the directive that must be followed i.e. SECNAV Instruction 1920.6B
1.  SECNAV Instruction 1920.6B (on encl (1))
In this case the Marine Corps wants to separate a Marine Officer for cause with an Other Than Honorable Discharge.  The Secretary of the Navy sets forth the following procedures:
1)  The Deputy Chief of Staff (M&RA) is designated Show Cause Authority as well as Lt. Gens/Gen in command.  (Para 13d.)
2)  All Commanding Officers Must report to DC/S (M&RA) All incidents by officers that may result in processing for separation (Para 1 encl(4)).  The DC/S (M&RA) must then begin the processing for separation if he wants the officer separated.  (Para 2 encl (4))
3)  Non-probationary officers, as in this case, shall be processed in accordance with the Administrative Board Procedures in encl (8), (Para 3b. enc (4))
4)  The Show Cause Authority (DC/S (M&RA)) has the mission to review and evaluate the officers record to determine if the officer must show cause for retention on active duty.  (Para la. encl (8))
5)  The Show Cause Authority must evaluate the officer’s record and determine if there is evidence to warrant a BOI or close the case if there is not sufficient information (Para lb. encl (8))
6)  The Show Cause Authority then must either convene a BOI or close the case.  (Para 1c encl (8))
7)  The results of the BOI go to DC/S (M&RA) and then Secretary of Navy, for his final decision.  (Para 2 m & n encl (8))
8)  No resignations are allowed except by the Secretary of the Navy in cases processed under Board Procedures.  (Para 11 encl (4).)  In addition, Para lc (3) of enclosure (2) under Processing Resignation Requests moves all resignations for cause into Para 11 of encl (4), which allows them only after Board proceedings.  (This renders those provisions in the Marine Orders invalid and Captain M_(Applicant)’s resignation null and void.)
9)  No officer shall be discharged under Other Than Honorable conditions without first being afforded the opportunity to have his or her case heard before a BOI.  (Para 9 encl (4)) There are no provisions to waive such an offer.  It must be tendered in writing to the officer by the Show Cause Officer.  (In addition to SECNAV Instruction 1920.6B see Enclosures (1), (4), (5), (6) & (15) to this appeal.)
2.  MCO P5800.16A 31Aug99 (LEGADM1NMAN) with 3 changes.  (on encl (1))
1)  Para 4 governs Officer Misconduct.  In the promulgation page, in Para 3e, it states Chapter 4 is changed to add procedures for waiving Boards of Inquiry, enclosure (17).  It does not state the authority to do this.  As stated above this order was dated prior to SECNAV Instruction 1920.6B which contains no provision to waive a BOI prior to being offered one by a Show Cause Authority.  In fact no OTH Discharge is possible without such an offer being actually made (Para 9 encl (4) SECNAV Instruction 1920.6B).  It would seem the only “waiver” possible after an offer is made would be by not showing up and even then the Board continues and makes a report.
2)  The MCO states that commanders retain “unfettered authority” to determine the proper forum for an officers case (Para 4001.1) This is in violation of SECNAV Instruction 1620.6B since commanders are mandated to report all serious officer offenses to a Show Cause Authority.
3)  Para 4002 is wrong in that the reports must go to CMC DC/S M&RA and not CMC (JAM).  In this case the report of NJP was sent to CMC (JAM).
4)  Although the Marine Corps tries to conform the LEGADMINMAN to SECNAV Instruction 1920.6B, it misses the mark.  In its new paragraph 4006 it does state that separation for cause proceedings must conform to SECNAV Instruction 1920.6B.  However it does not correct enough paragraphs to ensure this.  This is especially true when it uses the MARCORSEPMAN as its authority.  It will be seen that from its beginning the MARCORSEPMAN purposely separated Marine Corps policy from Department of the Navy policy and procedures, which becomes a fatal flaw.  (Enclosure (18))
5)  The above is especially true in Para 4007, which states: in “1.  An officer may tender a resignation at anytime during, or in anticipation of Show Cause Processing”.  There is no citation as to what authority allows this except for the MARCORSEPMAN.  The SECNAV Instruction does not allow this.  This policy completely frustrates the intent of the Secretary of the Navy as well as the U.S. Code & DOD Instruction 1332.40.  A further discussion of this follows in discussion of the MARCORSEPMAN.  This was also discussed in Issue III.
6)  Para 4007.2 also seems to be without any authority.  (This is really irrelevant since in this case there has been no voluntary waiver of a BOI that fulfills the conditions set forth either in the paragraph or the sample waiver.) The paragraph says a BOI can be waived during or in anticipation of the Show Cause Process.  This is in conflict with SECNAV Instruction 1920.6B which clearly and firmly states No OTH discharge may be given without an offer of a BOI by the Show Cause Authority.  (Enclosure (4) Paragraph 9) of the SEC NAV Inst.  No offer was made by a Show Cause Authority in this case so no OTH is allowed.  The U.S. Code as well as DOD Instruction 1332.40 do not permit waivers of the duties of a Show Cause Authority.  Assuming arguendo that there can be an “anticipatory waiver”, then just how far in advance can the anticipation be? Can the Marine Corps require an officer on his commissioning day to sign a waiver of a BOI in anticipation of the fact he may commit a crime, and keep a resignation and waiver in his records in case they need it? This whole procedure frustrates the U.S.  Code in its attempt to get a uniform procedure for officer separation.
Almost all of paragraph 4 is without authority, and contravenes the order of the U.S. Code and Secretary of the Navy, and is therefore invalid.  In addition, Paragraph 4007.1 relies on MCO P5800.16A for its legitimacy and by inference so does 4007.2, but that waiver provision is not in the MARCORSEPMAN.
3.  MCO P 1900.l6F dated 30May200l (MARCORSEPMAN) (on encl (1))
This order was written after the SECNAV Instruction 1920.6B was written, but is not in conformance with it as required.  In Para 4 it states it contains only Marine Corps policy and states that Department of the Navy policies and procedures can be found in the SECNAV Instruction.  Enclosure (18).  That is a strange statement but at least puts one on alert.  How can Marine Corps policy be different when the order is to make all policy uniform? A careful reading of Chapter 4 (Administrative Separation of Officers for Cause) shows that it in fact is not in accordance with the orders of the Secretary of the Navy.
1)  Once again Para 4101 requires commanding officers to report all incidents to CMC (JAM).  The SECNAV Instruction clearly states they must be reported to the Show Cause Authority, which can be DC/S (M&RA).
2)  Para 4104 attempts to allow an officer to resign at any time during the proceedings.  It does not cite any authority for this and violates the intent of SEC NAY Instruction 1920.6B, which is the controlling procedure, as well as Title 10 U.S.  Code and the DOD Instruction 1332.40.
4.  General
The Secretary of the Navy, as well as Title 10, clearly state that they want both Navy and Marine Officers discharged under consistent policies.  These policies are set forth unambiguously in SECNAV Instruction 1920.6B.  If cause is the reason for discharge there must be a Show Cause Authority and provisions for a BOI.  If, as in this case, an Other Than Honorable Discharge is contemplated it cannot be issued without a written offer of a BOI.  There is no provision for resignation outside the Board Proceedings venue.  Neither the Navy or Marine Corps can create systems to avoid the mandated policies and procedures of the Secretary of the Navy.  Both the MARCORSEPMAN and MARCORLEGMAN must be changed and rewritten to conform completely to the orders of the Secretary of the Navy.  Commanders must report offenses directly to a Show Cause Authority.  The Show Cause Authority must initiate his own investigation; examine the whole and complete record of the officer; and convene a BOI as instructed.  In no case can an OTH Discharge be issued without a written offer of a BOI by a Show Cause Authority.  None of this occurred in this case, which is illegal.  In addition the Secretary of the Navy is bound by the clear mandates of the U.S.  Code and DOD Instr 1332.40 which require a BOI.  To clarify this a letter was sent to U.S.  Rep. I_ of the Armed Forces Committee concerning what the services must do to discharge an officer administratively for misconduct.  The response from Rep. I_ is attached as encl (15).  It clearly states the question of discharge must go to a Show Cause Officer who must conduct an independent investigation.  If it is determined that the officer should be separated then the officer must be notified in writing of the reasons by the Show Cause Authority and a BOI convened.
This is a clear mandate on what all the services must do and it is an order to them, not the individual officer.  Ergo the individual cannot relieve the service of their responsibility by his waiver.  The services must proceed and follow this procedure regardless of the desires of the individual.

VI:  The Procedures used denied Applicant of substantial rights and due process..
SECNAV Instruction 1920.6B is referenced at all levels of command as the basic document under which Captain M_(Applicant) was administratively processed, but in fact it was not followed.  The subordinate MCO P1900.16F (MARCORSEPMAN) clearly states that in the case of inconsistencies the SECNAV Inst governs.  This is likewise true of the MARCORLEGADMIN MAN being subordinate to SECNAV Inst l920.6B.
1.  Enclosure (4) to the SECNAV Instruction covers “Guidelines on Separation for Cause.” This enclosure states in paragraph 1:
Advance Notification.  Commanding officers shall report to CHNAVPERS or DC/S (M&RA), as appropriate, all incidents (including information received through any source, e.g., Naval Criminal Investigative Service (NCIS), Naval Inspector General) involving any officer whose performance or conduct is such that processing for separation may be appropriate under this instruction.
Please note that through the use of the word “shall” all commanding officers “must” report all, incidents that may lead to separation.  There can be no doubt that the allegations against Captain M_(Applicant) fell within this mandate.  Obviously, the reports were not made since Show Cause Authority initiated no action and no such reports were furnished Applicant when he requested them under the FOIA.
Chapter 4 of the MARCORSEPMAN governs officer separation for cause and in paragraph 4101 mandates reports to CMC (JAM) of all incidents that may lead to separation.  This is in error because the SECNAV Inst orders the report be sent to a Show Cause Authority.  The operative part is that both SECNAV and CMC mandate every commanding officer to report all serious incidents of officer misconduct to a Show Cause Authority.  This was not done.  This part of the SECNAV Instr was violated at least on the following occasions:
a.  On September 28, 2002 when the commanding officer R.S.  B_ received a letter accusing the Applicant of serious charges, the show cause authority was not notified.
b.  On October 3, 2002 when Major T_ of the Inspector General’s office at Headquarters Marine Corps was notified of very serious charges against Captain M_(Applicant).  He did not notify a show cause authority as required.
c.  Prior to November 1, 2002 when the Commanding Officer 4^th Marine Corps District learned of the charges, and again on November 2 when he received the investigation of the serious charges, he never notified the Show Cause Authority as mandated.
d.  There was a violation when the Commanding General Eastern Recruiting Region first heard of the allegations without going to the show cause authority, and continued through the Report of Non Judicial Punishment which was sent to CMC (JAM) and not to DC/S (M&RA) or another show cause authority as required by the SEC NAY Inst.  (How the report of NJP got from CMC (JAM) to DC/S (M&RA) without endorsement is unknown.)
2.  Had the mandated reports been properly filed then under Paragraph 2 of Encl (4) of the SECNAV Inst 1920.6B, the DC/S (M&RA) had to begin processing under Paragraph 2 a. or b.  This would have triggered Paragraph 3 b, which in turn would have mandated the steps in encl (8) of SECNAV Inst 1920.6B.  In short, the show cause authority is mandated on notice to initiate his own action and not await the action of subordinate commands.
3.  Under enclosure (8) 1 a. the show cause authority is required to examine the complete records of the officer, not merely just endorse a report from a subordinate as was done in this case.  The Applicant requested all documents considered in issuing him a OTH discharge.  HQMC stated they furnished all those documents.  No documents favorable to the accused or concerning his previous or present meritorious service were included.  The enclosure requires initiative and affirmative acts on the part of the Show Cause Authority, not just a reaction to a report he did not prepare himself and which never examined the officers total record.  In addition to the above, the Show Cause Authority did not:
a.  Review and evaluate the officer’s complete record.
b.  Make an affirmative determination under the instruction whether a BOI should be convened.
c.  The order states the Show Cause Authority will not recommend characterization of service, but he did in his endorsement to the Report of NJP.
d.  He never made a decision on convening a BOI, which he is required to do.
e.  He never made findings based on his own objective investigation that he was required to initiate, but did not.
4.  Paragraph 9 of enclosure (4) of the SEC NAV Inst 1920.6B alone is dispositive of this case.  It states:
“Special Provisions
a)  No officer shall be discharged under Other Than Honorable conditions, under this instruction, without first being afforded the opportunity to have his or her case heard before a BOI.
b)  If proceedings by a BOI are mandatory in order to release an officer from active duty or discharge the officer, such action will not be taken except upon the approved recommendation of such a board.” (see encl (19) Paras 9a - 9b)
This provision was absolutely violated in this case.  The mandate is clear and the record is devoid of any written offer for a BOI made by the Show Cause Authority.  There is also no provision that excuses a Show Cause Authority from making the offer.  The only mention of a BOI in the M_(Applicant) proceedings is in the pretrial agreement where it states that any request for a BOT will void the pretrial agreement and result in trial by General Court (Encl (22)).  This certainly does not constitute “being afforded the opportunity to have his or her case heard before a BOI.”  The command has misinterpreted the responsibility for a BOI.  The individual does not initiate a BOI by request.  Title 10; DOD, 1332.40 and SECNAV Inst 1920.6B are unequivocal that when an officer is considered for separation for misconduct the Show Cause Authority convenes the Board, and in writing tells the officer the reasons for it.  The officer can attend if he so desires.  If not the Board continues.  The failure to do this is a blatant denial of that right and standing alone merits a reversal.  Even though the process violates higher authority the Marine Corps in its LEGADMINIMAN in form 4-11 sets forth what must be in a voluntary waiver of a Board of Inquiry and exactly what form and what language is mandated.  Enclosure (21) to this appeal sets forth what the Marine Corps states must be done.  Even though not permitted, the Marine Corps never followed its own order nor is that required waiver form anyplace in the record.  The Marine Corps would at least have to follow its own printed regulations to guarantee a legal waiver.  It does not and in fact the attempt at any waiver violates SECNAV Instruction 1920.6B as well as higher authority which guarantees at least a written offer of the BOI.  Whether that portion of the Legal Administration Manual is legal and whether the policy of waiver in advance is legal is discussed in another issue.  It is not legal.  The report of Non Judicial Punishment dated 25 Feb 2003 states in paragraph 2 that Captain M_(Applicant) waived an Article 32 investigation in the pre-trial agreement.  There is no such waiver in the pretrial agreement and paragraph 10 of the pre-trial agreement clearly states that no other agreement exists outside of that writing.  Since the only possible waiver is outside the agreement then there was no waiver and preferral of GCM charges were without effect.  This is especially true since the command itself wrote the pre-trial agreement that canceled any agreement not contained there in.
5.  Enclosure (4) of the SECNAV Instruction contains guidelines for resignations in paragraph 11 but is titled Formal Disposition of Cases Processed Under Board Procedures.  This paragraph was violated since the officer was illegally denied “Board Procedures”.  The SECNAV Instruction 1920.6B is clear in stating that it exclusively governs separation of officers.  In its enclosure on separation for cause it mandates a Board of Inquiry and no resignation unless submitted after that procedure.  Both resignations submitted by Captain M_(Applicant) request an Honorable Discharge.  Paragraph 1 la (3) requires the “REQUEST” to be consistent with enclosure (5) or it should be denied.  Logic then concludes that since it was not denied then it was consistent with an Honorable Discharge, which should have been awarded.  Admitting it could be less than Honorable is ineffective since the paragraph is based on what type was “REQUESTED”.  This is also discussed in a prior issue.
These many violations of Captain M_(Applicant)’s rights are substantial and deny due process as guaranteed by the Secretary of the Navy as well as Federal Statute.  Therefore any proceedings not based on them must be disregarded.  The violations are so apparent and violative of law, due process, and fundamental fairness that re-instatement would be justified.  However practical consideration of a career already damaged by these allegations make that unwise.  Yet, the blatant disregard for SECNAV Inst 1920.6B in favor of doing business as usual cannot be tolerated.  Fairness and due process both demand that an Honorable Discharge based on Captain M_(Applicant)’s intent to change careers should be ordered.

VII.  Applicant was denied Due Process and misinformed as to his rights.
As part of his Non Judicial punishment Applicant was given a punitive letter of reprimand dated Jan 31, 2003.  That document stated in paragraph 4 that the next superior authority was “The Commanding General, Marine Corp Recruiting Command Quantico VA.”
Accordingly Captain M_(Applicant) wrote to him appealing to the Commanding General to recommend him for an Honorable Discharge rather than an OTH.  The Commanding General Marine Corps Command Quantico (General Cortez) replied in a letter dated 31 Mar 03, Enclosure (23).  In that letter the general denies being in the chain of command.  However the content of his letter reveals that the Quantico Command (as also the Parris Island Command), were not in full compliance with the SEC NAV Instruction or for that matter their own Marine Corps order.  The following should be considered:
1.  In paragraph 2 of his letter the General quotes paragraph 4004 (1) of the LEGADMINMAN.  However the three sentences quoted from the Manual had been deleted and changed over two years before.  This shows that Quantico, as well as other Marine commands involved, were not following current procedures and also misinformed the Applicant.
2.  Paragraph 4 and 6 of the letter show that Quantico, like Parris Island, was still notifying CMC (JAM) rather than the Show Cause Authority as required.
3.  Paragraph 6 of the Quantico letter is of vital importance.  It states that sometime prior to 31 Mar 03 the General spoke to CMC (JAM) and was told that the Marine Corps would not consider anything further from Captain M_(Applicant) or his family or advocates.  All further information must be sent to the Secretary of the Navy.  This not only denied Applicant of one level of review but completely bypassed the Marine Corps Show Cause Authority who had the authority to stop the proceedings at any time.
4.  This letter is proof positive that sometime before the end of March 03, well before the discharge date, that the Marine Corps refused to consider the correspondence sent in Applicants behalf denying him an examination of his complete record as required by law.  This violation is in addition to those discussed in the other issues.
5.  The terse circling of the word “approved” by the Assistant Secretary of the Navy denied Applicant of his right to know exactly what if anything was considered at that level.
6.  The refusal of the Marine Corps to consider favorable correspondence and documents was not only illegal, but arbitrary and capricious, and rendered the proceedings invalid and void.
The policies and procedures used to discharge Captain M_(Applicant) clearly are not what is set forth in the SECNAV Instruction 1920.6B and are therefore invalid.  Accordingly he must be given an Honorable Discharge based on a change in career pattern.  This is especially true when he was misinformed of his appeal chain.

VIII.  Applicant was denied his rights to counsel as well as a witness at NJP.
In his sworn statement attached to this Appeal, encl (8), respondent states that he asked his counsel to be present at NJP, but his counsel said he was advised not to be there because it would make the General angry.  The Defense Counsel acknowledges that and other abuses in his attached statement, encl (24).  His counsel was not at the NJP Hearing but the General’s SJA was present along with two Prosecuting Attorneys (in case Applicant ended up at a General Court Martial).  Because Captain M_(Applicant) and Defense Counsel talked immediately before and after NJP, it is certain that Defense Counsel was in his office prior to and after NJP, but never appeared at NJP with his client although he was wanted there.  It becomes evident in this appeal that Applicant was advised to not avail himself of many guaranteed rights on advice of counsel.  Then his counsel did not appear at NJP, and later did not answer material or relevant correspondence, Enclosure (7)).  For counsel to allow a client to appear alone before lawyers and command elements hostile to his cause does, at best, seem like a poor decision.  This would seem akin to an accused taking the stand for cross-examination by a prosecutor while defense counsel absents himself from the courtroom.  It is an interesting legal question whether the Hearing Officer, or SJA in the room, knowing that respondent facing criminal charges and represented by counsel, could proceed with a hearing absent counsel or a positive declaration to the command by the assigned counsel that he did not want to be there.  No such document appears in the record that Captain M_(Applicant) was given by the command.
This problem is compounded by the fact that Applicant requested his Commanding Officer, Major J_, to appear on his behalf.  The Major was willing to appear but a Senior Commander, also concerned about the General’s reaction, advised Major J_ against it.  Subsequently Applicant was given a letter instead.  This letter was given to the General at NJP but is never mentioned or attached to the report of NJP or sent up the chain of command.  Another violation of due process.
These incidents in themselves violate fairness, regulations, and due process to the extent it is reversible error and mandates an Honorable Discharge.

IX.  The chain of command was aware of a mistake in the Report of NJP upon which the discharge was based but failed to take timely corrective action.  This conduct alone should render the OTH discharge invalid.
The General at NJP found Captain M_(Applicant) Not Guilty of Spec 2 of Charge II but in the report of NJP stated he found him guilty.  Captain M_(Applicant) asked his counsel to please correct this and was assured it would be done, Encl (7).  After his discharge Captain M_(Applicant) has discovered that this was not done and the erroneous findings were not brought to the attention of those deciding his case until after their decisions were made.
Enclosure (25) is dated 31 March 2003 and has a Captain Merritt telling a LCDR B_ that there is a mistake in the M_(Applicant) “package” as to findings and it has been in her office since 25 March 03.  We do not know where that office is or who she is but the date is after the endorsement of CMC (D M&RA) and no where is it stated that he was informed of the erroneous Guilty findings.  This means his decision was based on error prejudicial to Captain M_(Applicant) and there was no later reconsideration.
What is clear is that the error was discovered by the Marine Corps before the action of the Assistant Secretary of the Navy, however the Asst Sec NAV was not notified of that error until 12 May 03, enclosure (26).  This was at least six weeks after the CMC was aware of the prejudicial error and three days after Captain M_(Applicant)’s discharge.  As if to excuse the untimely notification, enclosure (26) states that the correct information might be elsewhere but the circling of the word “Approved” denies the reviewer and Applicant any insight into what was considered and what was not.  The Reviewer has no idea what the effect of the erroneous information was and the Asst SECNAV never replies, concerning the erroneous information he acted on.
The prejudicial error is compounded by the statement that Captain M_(Applicant) resigned to avoid trial by General Court Martial.  This is untrue and should never have been in any correspondence.
This issue must be considered together with other Issues which conclusively show that not only are the errors reversible errors in themselves but also that the remaining subject matter on which the OTH discharge is based is not sufficient to justify such a discharge.
These errors should result in an invalidating of the OTH discharge and a substitution of an Honorable one.

X.  This issue is divided into two parts:

Part A - shows that, in effect, the Pre-Trial Agreement contains language that negates all the proceedings that follow it.

Part B - is a discussion of what were to be the original charges and specifications and how they are rendered meaningless when examined after the accepted pleas, findings and excepted and substituted words are applied.

A.  The Pre-Trial Agreement is drawn in a manner that renders many of the legal and administrative procedures null and void.
The Memorandum of Pretrial agreement is attached as enclosure (22).  Its heading makes it clear that it was prepared at the “Depot Law Center.”  Based on that we can rely on the fact that it was carefully crafted by lawyers representing the government and the command.  The only conclusion is that the writing means exactly what it says and contains everything the command desired, since they wrote it.  The document is signed by all parties and binds them to its contents and, as in accepted law, the author is bound by its own writing and cannot go outside the writing to explain it or defend it.
1.  The first thing noted is that in paragraph 1 of the agreement is the only reference to exactly what will be resolved at the N.J.P.  The statement is “...I agree to the resolution of the charges and specifications LISTED BELOW” at Commanding General’s Nonjudicial punishment, provided the convening authority agrees to withdraw the charges and specifications from the General Court Martial.  The language is clear.  The parties withdraw any other charges and specifications and those “listed below” are the only ones that will be used at NJP.  Page 2 of the agreement lists the charges and specifications and they make no sense nor do they state any offense.  No one can be taken to NJP on such meaningless verbiage and no where in the agreement are the GCM charges incorporated even by reference.  Legally the NJP and all following procedures must fail as invalid.
2.  This is without doubt when paragraph 10 of the agreement is examined.  Nothing could be clearer “10.  There are no other agreements, oral or written, express or implied, between myself and the convening authority or any other representative of the government, except those written and contained in this agreement.”
This binding and all inclusive statement commits the government and the command to what is written.  There is no incorporation of any GCM into the agreement since it is outside the writing and they must proceed on the charges and specifications listed in the agreement.  They cannot since they are meaningless and fail to state offenses.  In addition there really is no General Court Martial in existence since no Art 32 was conducted and there is no waiver contained in the agreement.  See Para 4 Issue VI.
Para 10 clearly and legally reduces the whole proceedings to only what is contained in that agreement.  Consequently, these and subsequent proceedings are without effect and the OTH discharge invalid.
Part B of this issue, which follows, addresses the failure of the GCM charges and specifications if the above analysis is rejected.
B.  The charges and specifications against Captain M_(Applicant) became defective and void on their face.
When:
1)  There was a substitution and deletion of operative words in some specifications which voided other specifications.
2)  Findings of Not Guilty to certain charges and specifications rendered other allegations void.
In today’s judicial atmosphere where many “Guilty” persons are being set free after years of incarceration, many people realize that our judicial system can often be plain wrong.  Our TV and literature are full of stories where even “confessed” criminals and those pleading guilty are later exonerated.  It is clear that the repeated threat of years of incarceration and stacked “evidence” often leads to misguided arrangements and pleas, especially in the absence of aggressive counsel who may not believe in your cause and advise you to waive all protective rights.
It must be recognized that there is a great legal difference between a superior authority dropping or dismissing allegations and being found not guilty of those allegations.  In the former, the command can couch the same conduct under different charges for they have not rendered a decision.  In the latter, the commander in the same forum cannot find you both guilty and not guilty of the same conduct.  This is also true of any excepted words such as in this case “romantic”, “intimate” and “sexual”.  These words were not dropped but rather the accused is found Not Guilty of such conduct.  The agreement is also clear that at NJP Captain M_(Applicant) was found Not Guilty of all conduct listed in Charge IV and its two specifications, as well as the second specification in Charge II, as well as the excepted words.  One may now examine the remaining charges and specifications, and if they contain the same conduct for which he was found Not Guilty then that allegation must be dismissed regardless of plea.  In addition, if finding him Not Guilty of the excepted words then renders the specification as not stating a recognized offense, that too must be dismissed regardless of plea since you cannot plead guilty to conduct that is not an offense.
One must be thankful for institutions such as the Board for Correction of Naval Records which when faced with documents that are incorrect on their face can take remedial action and grant relief.  Although the Board is constrained by the standard that certain findings are final and cases cannot be re-opened, and they are not an investigative body, they do not have to sit idly by while the documents used to discharge an excellent officer in disgrace are on their face contradictory; fail to state offenses; and the pleas are negated by subsequent Not Guilty findings.
Also implicit in this issue is whether Captain M_(Applicant) received the zealous, aggressive and wise legal counsel to which he was entitled.  This will be expanded on elsewhere.
The essential facts for this issue is that allegations were made against Captain M_(Applicant) that resulted in a command investigation that enlarged on those allegations and sent them to a Commanding General who on 10 Jan 2003 referred 4 charges and many specifications to trial, Enclosure (27).  On 30 Jan 2003 the Commanding General signed an agreement with Captain M_(Applicant), which in essence withdrew the charges from a General Court if Capt M_(Applicant) would accept NJP. for those charges.
(This agreement is vital in many aspects but, in particular, is conclusive of the fact that when Capt M_(Applicant) accepted NJP the General Court threat was no longer operative and his demanded resignation could not be to avoid trial by court-martial, but actually was an unqualified resignation regardless of what the General intended, i.e. The pre-trial agreement plainly dropped any court-martial when NJP was accepted.  This rendered the resignation submitted with it inaccurate and prejudicial, and under SECNAV Instruction 1 920.6B without effect).  See previous issue.

Charge Sheet Vis A Vis NJP
The charges and specifications adjudicated at NJP on 31 Jan 03 are taken from a charge sheet dated 27 Nov 02, and the disposition of those charges and specifications was agreed to in a document signed by the Commanding General 30 Jan 03.  The Pre-trial Agreement, pleas and the charges and specifications are attached as enclosure (22).  It must be noted that by the wording of the Pre-Trial Agreement that the Charge Sheet was not part of the NJP and could not be considered.  However for this issue we will consider it for argument purposes only.  It must be noted that listing the offenses in that manner was a violation of MCO P5800 (LEGADMINMAN) as contained in MARADMIN 542/02, which states at “2A Item 1.” “Do not use charge/specification as in Court Martial”.  It goes on to state how this should be done.  It was not, Enclosure (28).  In addition the pre-trial agreement agreed to what words and charges would result in Not Guilty findings.  Retyping the allegations ahead of time to comply to the accepted agreement and deleting the Not Guilty ones would have been the fair and legal way to proceed.  However even that would not have cured the errors listed herein, but it does allow a comparison to the charges remaining.
The agreement deleted all words and phrases that stated there was any “sexual, romantic or intimate” relationship between M_(Applicant) and G_.  In fact, it not only removed those words and allegations but found him NOT GUILTY of any such conduct.  This action by the Commanding General completely altered the charges, and each charge and specification must be re-examined to see if they still allege an offense(s) and if so what offense(s).  Certainly the finding of M_(Applicant) NOT GUILTY of any “sexual, romantic or intimate” relationship with Sgt. G_ requires anyone deciding his fate to closely examine just what, if anything, is left to charge him with and does it rise to any offense let alone one worthy of a future destroyed by an OTH Discharge, especially when compared to his past record.
Captain M_(Applicant) was found Not Guilty of any “intimate” relationship with Sgt G_.  It is essential that all agree on the meaning of “intimate”.  To do this we turn to a recognized authority, i.e. Webster’s New Encyclopedic Dictionary 1993, which defines the adjective “intimate” as follows:
Intimate adj 1. belonging to or characterizing one’s deepest nature....  2.  Marked by a very close association or contact ...  3 a; marked by a warm friendship developing through long association...  b; suggesting informal warmth and privacy.  .  .4 of a very personal or private nature...
In a pre-trial agreement the General found the Captain Not Guilty of any of the above described conduct, then that type conduct cannot be charged in other specifications and must be dismissed.  As stated you cannot be found guilty in the same forum of conduct that you have been declared “Not Guilty”.
Captain M_(Applicant) in the Pre-trial Agreement and at NJP pleaded Not Guilty and was found Not Guilty to Charge II Specification 2, but this was later mistakenly reported as a Guilty finding.  When Captain M_(Applicant) found the mistake he reported it to his Defense Counsel who was not at the NJP, Encl (7).  Defense Counsel assured his client he would have it corrected.  It was not corrected prior to the discharge and in effect the Commandant and Asst SECNAV mistakenly acted on charges that stated the appellant was Guilty, when in fact he was Not Guilty.  This was a serious mistake not noticed until appellant was discharged constituting fatal error.  This is especially true when this serious error was not mentioned until after the discharge was effected.
To fully understand the significance of what was done and its effects on all the other charges and specifications, it is clearer to start at Charge IV and its specifications and work back to Charge I.  This is because appellant was found Not Guilty of all the conduct in Charge IV and that same or similar conduct appears in previous charges.
Charge IV has two Specifications.
It is important to note Captain M_(Applicant) was found Not Guilty of Charge IV and its 2 specifications.  The charge was not simply dismissed, he was found Not Guilty of the conduct described there in: viz:
Spec 1.  He was found Not Guilty of adultery with Sgt. G_
Spec 2.  He was found Not Guilty of trying to impede an investigation into allegations of fraternization, adultery and willful dereliction of duty in that:
1)  He was Not Guilty of failing to place himself on report to seniors
2)  He was Not Guilty of lying to the investigating officer about an inappropriate sexual relationship and was Not Guilty of lying about using his cell phone to legitimately counsel a subordinate.
3)  He was Not Guilty of lying when he said that he gave the subordinate a brief tour of his quarters.
In view of the acquittal of all the alleged conduct in charge IV, a close examination of all the remaining charges and specifications is warranted regardless of the plea since they cannot be false or contradictory on their very face, i.e. No one can plead guilty to conduct of which the same officer found him Not Guilty.  Also with the other Not Guilty findings of both charges and words it must be ascertained what offenses, if any, are left.
Charge III has one specification with 6 subparts summarized as follows:
Subpart 1)   This allegation was changed by agreement to an “inappropriate, personal and private relationship.  Without defining the inappropriate action there is no offense in having a personal or private relationship per se.
Subpart 2)   Misuse of government phones.  This conduct was also alleged in Charge IV Spec 2 (2) of which he was found Not Guilty thereby negating this specification.
Subpart 3)   Create perception of preferential treatment.  This is denied by all the statements of everyone who worked at the RS including the C.O.  The only allegations come from two individuals who thought they deserved the awards.  In addition Major Jurney, not M_(Applicant), made these awards and only after vote by the enlisted personnel.  This is all documented in the command investigation.  It is false on its face without any further investigation and had no basis on which the allegation could be made.
Subpart 4)   This is the conduct he was found not guilty of in charge IV
Specification 1.  Also, this allegation really does not state an offense.  In effect it charges M_(Applicant) with the crime of not passing on rumors about himself that a subordinate said she heard.  One could question whether the 5^th Amendment to the Constitution or Article 31 UCMJ requires passing on rumors about oneself (especially when the person is later found not guilty of that rumor).  When one chooses not to deal with rumors and not pass them on is the offense “Failure to Gossip”? But in fact statements confirm that this information was immediately passed on to Maj. J_.
Subpart 5)   M_(Applicant) was acquitted of this by the findings in Charge I and Charge IV.  Charge II has two specifications.
The first specification finds him guilty of telling the Investigating Officer all his contacts with Sgt. G_ were official when at times there were personal conversations.  There is absolutely no crime in having a personal conversation with a subordinate, and unless it is a crime it is really not a relevant subject to an investigation.  On its face the specification does not allege an offense.  Also this is negated by the Not Guilty finding to Spec II of Charge IV.
The second specification accuses M_(Applicant) of lying to the Investigating Officer concerning a tour of his house.  This same allegation is contained in subsection 3 of specification 2 of Charge IV of which he was found Not Guilty.  It cannot be both ways so this specification cannot stand.  (N.B. the Pretrial Agreement had him Not Guilty of this allegation but this error was never corrected before his separation.)
Charge I has two specifications
Specification I has 6 subsections and alleges that M_(Applicant) violated a lawful General Regulation.
When the “Not Guilty” words are omitted the specifications allege Sub Spec 1 That Captain M_(Applicant) drank alcohol with G_ and talked with G_ on personal subjects.  The meeting in public places cannot be an offense without other allegations.  If drinking a soda with her is not a crime, then (if they are of age) drinking alcohol is not an offense.  The command investigation clearly relates that many senior subordinates were drinking and friendly and eating dinner together, yet M_(Applicant) is the only one charged.  This conduct is not an offense as described.  Also talking non-official subjects is not an offense.  This could cover the weather, sports, inquiring about her family etc.  The specification as reworded after the Not Guilty of excepted words does not state an offense.
Sub Spec 2 He was found Not Guilty of this in Charge IV as well as the omitted words, so he must be Not Guilty here since it was the same conduct he was found Not Guilty of
Sub Spec 3 Found Not Guilty
Sub Spec 4 Not Guilty of excepted words.  Contacting a subordinate using a telephone does not state an offense.  Since it on its face is not an offense it must be dismissed.
Sub Spec 5) and 6) He was found Not Guilty of excepted words and the remaining conduct is same as that of which he was found Not Guilty in Charge IV Spec 2 subsections 2) and 3).  In addition, he had no control over who sends text messages so he can’t be guilty of receiving them.  The sender should be charged, not the receiver.
Specification 2 alleges that he was derelict in his duty by misusing his cell phone.  To be derelict in a duty one must have a duty to do something and then either willfully or negligently fail to perform that duty.  That is in the Manual for Courts Martial.  Captain M_(Applicant) had no duty to make phone calls.  That was not his duty.  On its very face this is wrong and not an offense.  If there was an order not to make personal calls then a violation specifying that order should have been alleged.  It was not.  This specification as written is not an offense.  Even assuming arquendo that this could be dereliction of duty, the specification cannot stand since he was found Not Guilty of this conduct in the wording of the last phrase at subsection (2) of Specification 2 of Charge IV.  The Not Guilty finding there was not only of sexual conduct but he was found Not Guilty of saying the phone calls were legitimate.  In addition, how can he be found guilty of receiving calls since he has no control over who dials his number even if he tells someone not to call.  This is akin to charging him with calls from telemarketers or wrong numbers.

No matter how you read the report of NJP as well as the prior agreement, it is manifestly clear that the finding of Captain M_(Applicant) “Not Guilty” of a sexual affair and “Not Guilty” of all the conduct in Charge IV and elsewhere has to result in “Not Guilty” of the other charges that allege the same conduct of which he was exonerated.  In addition without the excepted words many of the remaining charges fail to state any offense.  To state that every senior is barred from having a private or personal conversation with a subordinate, per se, would wreck havoc with e.g. Chaplain, Doctor and Familial Relationships, as well as prohibit any counseling of a junior by a senior.  To state an offense the specification, as a minimum, must allege some violative conduct and without the excepted words many do not.  Simply, you cannot plead guilty to either conduct that does not state a crime or of which you were found Not Guilty.  This is especially true when it occurs in the same Art 15 hearing.
The fact that the command SJA and Capt M_(Applicant)’s own counsel missed these obvious errors cannot be used to punish Capt M_(Applicant), but conversely should be used to upgrade his discharge.
Since the Board of Correction of Naval Records has the authority to examine documents on their face and correct those obviously in error, it is hoped they will take the time to closely examine the result of the excepted words and the “Not Guilty” findings.  A command cannot just make up offenses.  All authority is bound by what is written and what they actually did.  What the command intended is of little import.  They are bound by the allegations as they wrote them and later as they changed them to comply with the Pre-trial Agreement.
After the words are “excepted” and the findings of “Not Guilty” are compared to the remaining allegations very little if anything remains and certainly nothing upon which an OTH discharge can be justified.  As stated, you cannot be guilty of conduct of which, (in the same forum) you were found “Not Guilty”.  The findings made by using exceptions and substitutions materially altered the charges and specifications to the extent that they no longer constituted the crimes alleged or any crime at all, so they must be dismissed.  This being so, it was illegal to “anchor” the OTH Discharge on alleged conduct that was materially different from that originally alleged and changed.  It no longer was the same conduct charged and now not an offense.
Upon careful review and examination it is convincingly clear that the conduct of Captain M_(Applicant) does not substantiate the award of an Other Than Honorable Discharge even when viewed by itself When one considers his total outstanding performance of duty (which the command did not) and the fact that no one considered his conduct serious enough to relieve him from duty, either before or after the NJP, then a less than an Honorable Discharge cannot be justified.

XI:  The Commandant of the Marine Corps recommendation of Mar 20 2003 fails the test of impartiality, legality, objectivity and fairness and must be disregarded.  This being so, the terse “Approval” by the Assistant Secretary of the Navy is also fatally flawed.
The recommendation of the Commandant of the Marine Corps dated Mar 20, 2003 for an OTH discharge is found as the 1^st endorsement to the Report of Non Judicial Punishment by the C.G. of the recruiting command at Parris Island.  Enclosure (13).
It must be noted that this is an endorsement to a report, and not an independent report totally evaluating the situation, which is required by SECNAV Instruction l920.6B.  The basic correspondence states that Captain M_(Applicant), at NJP, was found Not Guilty of any “sexual”, “romantic” or “intimate” conduct with a subordinate.  Nothing could be clearer.  The Commanding General at Paris Island accepted the many consistent sworn statements of Captain M_(Applicant) over the inconsistent and hearsay statements of Sgt G_ and found there was no proof of any sexual, romantic or intimate relationship.  The finding was Not Guilty.  This 1^st endorsement by CMC completely disregards those Not Guilty findings below and, without citing any authority, proceeds to accuse Captain M_(Applicant) of the very things of which he was found Not Guilty and some he was not even accused of Certainly CMC does not have the unfettered authority to overturn legal proceedings on a whim and without any explanation.  Not only is this wrong, in itself, but he interjects pejorative and abusive language that is not only untrue but are words that incite and inflame.  In Para 4 of that endorsement Capt M_(Applicant) is accused of “PREDATORY INTENT”. Websters New Encyclopedia Dictionary of 1993 refers to “predatory” as to one living by “predation”.  “Predation” is defined as a “mode of life in which food is primarily obtained by killing and consuming animals”.  This description of Captain M_(Applicant) as intending to prey on or be a predator in relationship to people is uncalled for; completely unsupported by fact; obviously false; and so prejudicial as to render any later opinion by this officer unworthy of consideration.  That is only using the denotation of the meaning of “Predatory Intent”.  The connotation is certainly that Captain M_(Applicant) was a “Sexual Predator” which is absolutely without fact or finding.  This is, per se, a grievous reversible error.  That same paragraph contains another false accusation.  It maintains Captain M_(Applicant) is guilty of “an ongoing pattern of deceptive behavior”.  The fact is, if you accept the findings of the Commanding General exercising GCM authority, then the above cannot be true and is unsubstantiated by the findings.  As stated, this is simply an endorsement to a report and not a separate investigation.  Any substantial deviation from that report would require a separate letter or remarks accompanied by facts and proof that would justify those deviations.  Therefore the use of inflammatory, unproven and false information render this endorsement invalid and its recommendation void, also rendering the SECNAV approval without comment invalid.  Without any comment it must be assumed that the SECNAV joined in these prejudicial and unsupported accusations.
However, this is not the only thing that renders the endorsement flawed and prejudicial.  One assumes that the author read the basic report and then endorsed it.  The basic report contains a signed agreement as well as the results of NJP.  It is obvious that the 1^st endorsement at CMC level ignored or disregarded those documents.  In paragraph 3 in what is termed “A brief chronology of this case” the commandant’s representative selects only things that are injurious and prejudicial to Captain M_(Applicant) and completely omits anything that would put Capt M_(Applicant), in a favorable light.  That paragraph never mentions that Captain M_(Applicant) was found Not Guilty of the conduct cited in that same paragraph nor does it mention that Captain M_(Applicant) has consistently denied it.  In addition in Para 4 the Deputy Commandant makes conclusions that he states are found in the command investigation that no fair reading of that investigation can support.  In addition, he cites the command investigation as the basis of his decision.  He never states that many of the findings of that investigation are negated by the later Not Guilty findings at NJP.  This renders his findings and endorsement invalid.
It is clear on its face that the endorsement is replete not only with error, but it is not a fair and impartial consideration of the facts and therefore renders the Deputy Commandants recommendations void.
The fact that the representative of the Commandant of the Marine Corps uses the pejorative and provocative and demeaning words “predatory intent” where there is absolutely no facts to support it is one matter, but to use such words when the General knows that Captain M_(Applicant) was found NOT GUILTY of such conduct is outrageous and without merit.  His findings and recommendations must be rejected and discarded.
The Assistant Secretary of the Navy does not affirmatively reject or distance himself from that flawed endorsement, but by his terse encircling of the word “approved” embraces that and the other errors it contains.  Accordingly, that endorsement also becomes fatally flawed and must be rejected, especially considering the fact that he was acting on erroneous findings as discussed in a previous issue.
As discussed elsewhere the use of an endorsement to a Report of NJP to discharge an officer from the Marine Corps is a complete violation of SECNAV Inst 1920.6B as well as the U.S.  Code.  The endorser by title is a Show Cause Authority who has specific duties and obligations outlined by the Secretary of the Navy.  He never assumed or discharged those duties.  This Show Cause Authority never initiates the action or procedures he is mandated to do in SECNAV Instruction 1920.6B, but merely endorses a report which ignores all the rights of the Applicant.  Neither he or the Assistant Secretary of the Navy fulfill these responsibilities, nor do they state why they do not.
This alone merits the discharge be changed to Honorable by reason of changed careers.

XII.  The actions of the chain of command are completely inconsistent with the type of discharge recommended and awarded.
“Actions speak louder than words” is an old axiom that certainly is applicable to this case.  Initially Captain M_(Applicant) was charged with having a sexual relationship with a subordinate; lying about it; and misusing his government phone.  These allegations were contained in 4 charges and many specifications and referred to a General Court.  Enclosure (27).  The allegations first arose in September 2002 and were debated and discussed until Captain M_(Applicant)’s discharge on 9 May 2003, a period of approximately 7 to 8 months.  It should be remembered that many of the charges were based on actions “allegedly” prejudicial to the good order and discipline of the Marine Corps.  It is interesting to see what was done in the command to remedy the supposed havoc and command problems that Captain M_(Applicant)’s actions caused, i.e. What remedial action was taken at any level to correct the prejudice to good order and discipline?
The fact is that in those many months nothing was done.  Captain M_(Applicant) was so vital and important to the operation of his command that he remained as the executive officer until the day he was discharged with an OTH.  The records will also reveal that during this period, on occasions, he was actually the acting Commanding Officer with the apparent knowledge of all the seniors in the chain of command.  Obviously no one was really upset at his supposed transgressions since he was kept in command of the person he had the alleged inappropriate relationship with.  He also commanded the two supposed accusers all those months until he left.  In fact, both parties retained their cell phones almost to the end when the Captain relinquished his to someone with a greater need.  From September 2002 to May 2003 no one complained that he was in a command position and his Commander evaluated him as an excellent officer through all those months.  In fact the command investigation shows that most of the members of the command never saw any impropriety on his behalf and viewed him as an outstanding officer.  If there was any actual prejudice to good order and discipline within this command why weren’t any personnel changes made?
On 18 Jan 03 a General Officer referred Captain M_(Applicant) to trial by General Court Martial on multiple charges that the General was made aware of months before.  That General Officer held NJP on Capt M_(Applicant) on 31 Jan 03 and stated M_(Applicant) was not guilty of anything sexual, intimate or romantic, as well as other not guilty findings.  Yet although the captain stood before him and the General found him worthy of an OTH discharge, he never relieved him of duties.  The Captain was sent back to a command billet until his discharge on 9 May 03.  In other words, the General allowed him to remain in command for over another 3 months.  Yet, knowing what his fate would be, he served with excellence, dedication and dignity until he was released. Encl (29).  Even CMC or SECNAV did not relieve him of duties and he continued to perform well in a command billet even though these commanders might be in violation of the same order they used to process him.  He was always an asset to his command.
Captain M_(Applicant) was never a threat to the good order and discipline of his unit or to the Marine Corps.  His conduct both before and after the allegations was superior, and almost all the statements in the command investigation are laudatory and deny ever seeing conduct prejudicial to good order and discipline.  No commander considered his conduct worthy of relieving him.  Captain M_(Applicant)’s record as a whole when viewed together with what he actually was found guilty of (as opposed to what he was charged with) merits an Honorable Discharge.  It is a shame that his entire record was never examined or discussed as required.  The actions at all levels of command that kept him in the same command billet until discharge as he held when accused many months before is proof positive that no one really believed his true actions merited an OTH discharge.

XIII.  The Marine Corps’ Congressional Response Letter of l7June2003 is replete with errors and misstatements; violates privacy and conclusively shows Applicant received an OTH Discharge for conduct for which he was found Not Guilty.
1.  Since Captain M_(Applicant) was from a Marine Corps family he felt shame and confusion concerning the events that were happening.  He believed his innocence of the allegations would bar any bad discharge, so he did not tell his family of his predicament until very late in the proceedings.  On a visit home he related the story to a family friend who pointed out that neither he, nor his command, nor his counsel, had aggressively pointed out the excellence of his career or his excellent character as seen through the eyes of those who knew him since childhood.  He was brought to realize that a “package” that balanced his actual conduct (not what he was originally charged with) against his unblemished background was a necessity to allow the Marine Corps to reach a just result.  He now realized that the present procedures presented nothing in his behalf and he needed to do so.  He realized his total record was being ignored.
With this in mind he requested a two-week extension before separation to prepare those documents.  He thought the Marine Corps would have no objection since a) it was his right to submit such documentation; b) up until this time he was still in the same duty status; c) the request was not involving a long period of time; and d) it could be done in a leave status.  Since the Marine Corps had not acknowledged any of his past communications he was advised to request it through his Congressman to assure there would be a permanent record of the request.
The following must be noted:
A.  Captain M_(Applicant)’s letter and the Congressional endorsement were mailed from Washington D.C. to Washington D.C. on lApril2003.  This is over one month before his actual separation from service.  Enclosure (30).
B.  The basic request in Captain M_(Applicant)’s letter is that he wanted a two-week extension so he could submit documentation to show his overall outstanding record.  He did not attack the NJP but stated that he only recently became aware of his right to submit evidence concerning his discharge.
C.  The Congressional endorsement is very clear that the matter is limited to a request for a two-week stay of separation proceedings.  Enclosure (30)
2.  The Marine Corps reply to the Congressman, enclosure (2), is very revealing as to attitude, justice, and fairness:
A.  The response to the delay request is dated l7June 2003 some 2 ½ months after the request was made and as cited in the response some 5 weeks after discharge.
B.  In an unbelievable characterization, (although the Marine Corps had the request well before the separation and they delayed weeks in acting on it), they characterize the request as “untimely”.  Yet all the delay was theirs.  The response, not the request, was “untimely”.
C.  Even though the request is restricted to a two week extension, the Marine Corps adds insult to injury.  They gratuitously relate to the Congressman, and his staff, accusations of which Captain M_(Applicant) had been found Not Guilty.  They laid out a scenario highly prejudicial to Captain M_(Applicant) containing matters for which he was exonerated allowing the addressee to believe he was found guilty of the conduct cited.  In addition, these untrue allegations were unnecessary to answering a request that they denied anyhow.  Enclosure (2).
D.  Any fair reading of the response leads one to believe Captain M_(Applicant) is guilty of adultery, which is absolutely false.
E.  The 5^th paragraph also states Captain M_(Applicant) accepted NJP to avoid trial by General Court Martial.  This is also untrue since it was the general who elected to proceed in that manner.  He held all the cards.  Applicant’s Counsel informed him that the command wished to dispose of the allegations at NJP and no Court Martial.  He assented.  (This is also one of the reasons the resignation could not be one to avoid Court Martial).
F.  The Marine Corps states that Applicants appeal is directly to the Board of Correction of Naval Records and includes the forms.  Accordingly those instructions have been followed as the only administrative remedy.
G.  The response also states a copy of their objectionable letter should be included with his petition.  It would be interesting to know under what authority the Marine Corps can require an Applicant to include their letters in what is his appeal, especially if the letter contains inaccurate and wrong information? However, since the letter is the fundamental part of this issue it is included as he is directed to do.
3.  The reader of this application is requested to pay close attention to this l7June2003 Marine Corps response.  It certainly contains objectionable and prejudicial matter that is wrong and inaccurate, and it also violates the privacy of the Appellant by giving completely unsolicited and gratuitous personal information in answer to a simple request that they deny.
The response letter is certainly biased and unfair, but the real importance is that it conclusively shows that the OTH discharge should be reversed.  It has been contended in previous issues that the policies and procedures in this case are in complete disregard of appellant’s rights and this letter shows that tendency.
Captain M_(Applicant) has always denied any sexual relationship with Sgt. G_ who also initially denied it.  Captain M_(Applicant) refused to plead guilty to any sexual, romantic or intimate relationship and was found Not Guilty.  He is also Not Guilty of any attempt to lie or cover up a sexual relationship that did not exist.  He knew and was told that any remaining allegations were minor and not worthy of an Other Than Honorable Discharge.  What he didn’t know was that the Marine Corps would find him “Not Guilty” of that immoral conduct but disregard his innocence and throw him out based on it.
Also the endorsement of CMC D/CS (M&RA), enclosure (13), plainly shows the Marine Corps still accepted the hearsay allegations and not the findings.  The 17une2003 response to Congressman Bishop conclusively shows the abuse of power and illegality.  It keeps repeating the hearsay allegations of adultery, but never mentions that he was found “Not Guilty” of that conduct.  The record plainly shows the allegations were not simply dropped but he was found NOT GUILTY of them.  This response written well after his discharge (and with months to form a careful reply) clearly shows the OTH Discharge was for adultery and other conduct for which he was found Not Guilty.  Had the Marine Corps used the mandated BOI procedures this would not have occurred.  This is unfair, wrong, violates due process and illegal.  The discharge must be changed to Honorable based on the overall record.
Additionally, it was arbitrary and capricious to deny the two-week extension to exercise his rights and then wait until months after his separation to answer the request.  This denied him of any judicial appeal rights while on active duty.

XIV:  The Command Investigation was incomplete, biased and its conclusions unsupported by the enclosures to it.  It becomes obvious that no one has closely read this document.
(It is assumed that HQMC will supply the lengthy and bulky Command Investigation)
The Command Investigation is the document from which all the charges and specifications have sprung and upon which the chain of command based the decision to give Captain M_(Applicant) an OTH Discharge.  This investigation is cited at all levels of the chain of command and especially by CMC (M&RA).  Since this document is the foundation document upon which all charges were based then it must be examined closely for legality, objectivity, fairness and adequacy.  When this is done it does not bear up under close scrutiny and it becomes obvious that no one has read this document closely.  It has been accepted by every level of command without comment on its inconsistencies, bias and fatal errors.  This is especially important since there was no Article 32 Investigation and the Marine Corps never conducted the required Board of Inquiry.  This being so, the Command Investigation virtually stands alone as the document upon which the characterization of the discharge was based.  Of course, as is true of all other documents, it cannot be read in a judicial vacuum but must be considered not only on its own contents but also in light of everything else that transpired.  That being said, it does stand alone as the only written investigation of this matter.  However, it also recognizes its own limitations and recommends further formal inquiry.  That further inquiry was never conducted.
It is significant that much of the command investigation supports Captain M_(Applicant)’s denials of any sexual or military wrongdoing.  That fact is ignored and continues to be ignored throughout the entire subsequent procedures.  Where a statement or act can be construed in different ways it is universally construed against Captain M_(Applicant).  In addition, all the statements exonerating Captain M_(Applicant) are ignored in the findings of fact and only those against him are utilized.  There is no weighing of the evidence on both sides.  Also the inconsistencies and errors contained in the investigation are never mentioned at any level of command even though the investigation is the basis of all charges.  It sets the stage for Captain M_(Applicant) to be threatened with incarceration for things he denies and in effect coerces unwise legal decisions on his part.  However, even when read against the interests of Captain M_(Applicant) it does not contain what is necessary for an OTH discharge when viewed within the entire procedure.
The command investigation is so flawed, one sided, and inconsistent that it should have been disregarded in its entirety.  It is fatally flawed for what it does not say as much as it is for what it does.  Although the investigation is replete with error only some of the inconsistencies will be addressed here.
The important question is why they were never addressed by those in the chain of command.  The only answer is that nobody read it carefully.
1.  Investigation Opinion #6 states: “That Sgt G_ is telling the truth in all matters pertaining to this investigation.”  The investigator refers the reader back to Finding of Fact (FOF) 22.  That FOF uses enclosure 9 to substantiate it.  Enclosure 9 contains a complete denial of any inappropriate action between Sgt. V_ G_ and Captain M_(Applicant) and later (when coerced by her husband) it states the complete opposite.  Clearly one of the statements had to be a bold faced lie.  She either lied about not having sex or having sex.  The lie is made face to face to the investigating officer.  Yet knowing she was lying about the facts in at least one statement he states “SHE IS TRUTHFUL IN ALL MATTERS.” For the I.O. not to alert the reader that she has made completely contradictory statements within the space of two hours is absolutely prejudicial and renders the investigation invalid.  This is compounded by the fact that no reviewing authority, including the Secretary of the Navy, even mentions the significant contradictions, errors and insufficiency of the investigation even though their decisions are based on it.  Also enclosure 7 does not state what the IO says it does.
2.  Investigation Opinion #1 The investigating officer states that charges of adultery and fraternization are substantiated in his own Findings of Facts (FOF) 20, 22, 23, 24, 26.
a.  FOF #20 says that Sgt. G_ confided in Sgt. F_ about sex and cites enclosures 6, 9, 13 to the investigation to prove that fact.  Enclosure (6) never mentions Sgt. F_.  In enclosure (9) Sgt. G_ denies she ever told Sgt. F_ any such thing and only when brought back by her husband does she change the statement.  In enclosure (13) Sgt. F_ in a written statement unequivocally states, “It is entirely possible that she (G_) made the whole story up about her and the XO (M_(Applicant)).  Knowing the XO as I know him as a Marine officer and as a man, I honestly feel that he wouldn’t do something like that.” The findings and all subsequent endorsements ignore this contradiction and never mention that the statement is untrue.
b.  FOF 22 thru 26 are all based on enclosures 6,7 and 9.  In enclosure 9 Sgt. G_ clearly denies any inappropriate behavior on Captain M_(Applicant)’s part but this is never mentioned.
3.  Investigation Opinion #2 The IO states Captain M_(Applicant) is lying about adultery and has made a false official statement and supports this with Finding of Fact 33.  However FOF 33 states “That Sgt G_ has personal problems dealing with her pending divorce and custody of her child”.  The enclosures 9 & 11 refer to those problems, but this is irrelevant to supporting the opinion on which a recommendation for disciplinary action is based.  The opinion and FOF 33 supporting it are non-sequitors, i.e. One has nothing to do with the other.  It makes no sense, but no one mentions that.
4.  Investigation Opinion #7 The investigation states, “That Sgt. V. G_ has everything to loose (sic) by telling the truth and everything to gain by lying about allegations.” In addition to being a completely one sided, prejudicial, unsupported statement; it is also a plain silly statement from a supposedly objective investigator.  This statement by the IO is also a complete violation of Section 0215 b (3) of the JAG Manual, that states “However, it is, in most cases irrelevant and improper for an investigative body to theorize about the thought processes of an individual that resulted in certain courses of conduct.” When one reads the statements of Sgt. G_ which contain obvious contradictions and lies as compared to the completely consistent statements of Captain M_(Applicant), this opinion clearly reveals a prejudicial and closed mind-set of the investigator, which in itself should have required a new investigation.  (Also when Captain M_(Applicant) later gave documents to the command proving Sgt G_ lied about sex, a new investigation should have been ordered.)
5.  It must be noted that Findings of Fact 25, 26, 27, 28, 31 also have at least in part referenced enclosures that do not support or state what is claimed by the IO.  In FOF 52, encl (6) never discusses the text messages and does not use the word “unprofessional” but does use the word “professional” in discussing the relationship.  Also FOF 53 is absolutely wrong.  Enclosure (10) denies completely any “unprofessional” conduct with Sgt G_.  The words “inappropriate” and “stupid” occur, but this does not give the IO license to change words into those with a different meaning.  Again in FOF 54 the reference to encl (6) is wrong and therefore unsupporting since text messages are not mentioned therein.  In addition, the IO places a phrase in quotation marks, but that phrase does not seem to appear either in encl (6) or (9) as he certifies.  Once again the CG recommending the OTH discharge states in his report of NJP that he bases everything on the Command Investigation, but no level of command, including SECNAV cites its many errors; false citations and erroneous conclusions.
6.  The manner in which the IO conducted his investigation violated all principles of impartiality, and incorporated into its findings and opinions only those matters prejudicial to Captain M_(Applicant), and omitted those matters tending to exonerate him.  Nowhere in the conclusions is it mentioned that the accuser lied to the investigator.  The history of the case reveals that on 10 Oct 02 Sgt. G_ appeared before the investigator and unequivocally denied any inappropriate relationship with Captain M_(Applicant) and stated Sgt. F_ was lying because F_’s husband had made sexual advances at her.  This is never mentioned in the body of the investigation.
The Investigating Officer then sought out Captain M_(Applicant) and told him he was “off the hook” because Sgt. G_ denied everything.  He does not include that in his Investigation.  However, the investigation does reveal that G_’s estranged husband was waiting for her when she came out of the interview during which she denied any involvement whatsoever with Captain M_(Applicant).  In his statement the husband says his wife had previously denied any relationship with Captain M_(Applicant) and he told her to tell the truth which one can only presume she did at the initial interview.  The husband however in a very strange statement portrays himself as a “human lie-detector” and he claims his senses and training are so good that he knows his wife is untruthful.  Of course earlier in his statement he “did not think anything else of it” when his wife denied any relationship and one can only assume his “machine” was not working on that day.  Then the husband admitting to be “versed in the UCMJ” tells his wife she is facing a Dishonorable Discharge and 5 years in prison if she doesn’t change her testimony.  According to him she now changes her story, and he, the husband, goes into the investigating officer’s office and relates “all the detail” to him.  (One must read enclosure 15 to the investigation to capture the full weirdness of the statement.)
In any event the Investigating Officer relates the continuing saga in enclosure 9 to the investigation.  The Investigating Officer states “At 1629 Sgt. G_ and her husband approached me and stated that THEY need to make another statement”.  Note that the IO says that it wasn’t “she” had to make a statement, but “they” were making a statement.  In addition the IO states: “SGT. G_ WAS EMOTIONALLY DISTRAUGHT AND COULD NOT TALK, SO I ASKED THE FOLLOWING QUESTIONS”.  It really doesn’t matter what follows since the answers from an emotionally distraught woman who can’t talk are absolutely unreliable.
The events as related in the investigation are troubling at best.  The statements, including those of the investigator, reveal that around 1500 on 10 Oct 02 Sgt. V_ G_ left the IO office in a calm manner after unequivocally denying any inappropriate behavior with Captain M_(Applicant).  She then encounters her estranged husband who is waiting outside.  He admits threatening her with a Dishonorable Discharge and 5 years imprisonment if she doesn’t change her story and one can only guess what else.  In any event, around 1600 that same day it is the husband who states he goes into the IO office and tells him “all the details”.  As recorded, the wife is so emotional that she is unable to talk and her husband remains in the interview.  It must be stated that for the IO to now take testimony from this woman in her condition, while allowing the person who intimidated her to remain in the room, could only produce highly unreliable statements.  After the IO got the testimony he wanted he states:
“AT THIS TIME SGT. G_ WAS (SO) EMOTIONALLY DISTRESED, I RELEASED HER TO COLLECT HER THOUGHTS”.  It is inconceivable that a Marine Field Grade would not compose such a witness before questioning her and likewise inconceivable that those endorsing it would not mention how unreliable such testimony would be.  It should be a general rule that if a person is “too distraught to talk” she is too distraught to answer questions.
(Please read the enclosed statement of Sgt. Major A_, who after this was over, talked to Sgt. V_ G_ who stated her change in testimony was produced by threats from her husband and a Master Sergeant.  There is no mention of this MSgt in the investigation, but he apparently accompanied the IO to Baltimore.  Sgt G_ later tells Sgt Major Athey that the MSgt joined the husband in threatening her.  The JO should never have allowed that.  She further told him her later statement was created by and typed by her husband and she merely signed it.  Enclosure (31).  (In addition, it seems that this unnamed MSgt also sat in on all interviews conducted by the IO, even those with Captain M_(Applicant).)
It must be further noted that the 15 Oct 02 statement by the IO was the result of a phone conversation, and not a face to face interview where the IO could observe the conduct of the witness and also ascertain if anyone else was present coaching or intimidating the accuser.
The fact that the chain of command endorsed this conduct without comment is testimony of either inattention to detail or wanton disregard for the rights of Captain M_(Applicant).  In either case the findings of the Investigating Officer are unreliable based on the endorsement of suspect testimony and complete disregard for testimony to the contrary.  The facts that Sgt. V_ G_ claimed that there was inappropriate behavior at a conference and that Captain M_(Applicant) and every other Marine present denied ever seeing any indication of that behavior is entirely dismissed without comment.
7.  The Finding of Fact #21 is in error on a very important fact that, if believed, places Captain M_(Applicant) in an untenable position.  The FOF states that on 9 Oct 02, Sgt. G_ confided in her husband that she had sex with Captain M_(Applicant).  This is completely unsupported by fact.  It is obvious no one has read this investigation closely, yet General P_ says he bases his recommendation on it.  The husband in his statement says his wife always denied an inappropriate relationship with Captain M_(Applicant).  On 10 Oct 02 she denied any inappropriate relationship to the IO yet the IO says on 9 Oct 02 she admitted it.  However, it was only after the intimidation by her husband and an unnamed MSgt on 10 Oct 02 that she is coerced into a different statement.  The fact that the I.O., the SJA and all subsequent endorsers did not catch this significant error is indicative of a lack of attention to details.  FOF #21 standing alone and unchallenged leads the reader to believe that she was lying on her initial statement of 10 Oct to the I.O.  This is not true and renders the investigation fatally flawed.  It is also another comment on the poor representation of Captain M_(Applicant).
8.  Opinion #2 states, “that Captain M_(Applicant) is lying about a sexual relationship between himself and Sgt. g_ and made a false official statement....”  The reader is then referred to Finding of Fact #33 as proof.  FOF #33 states a truism “that Sgt. G_ has personal problems dealing with her pending divorce and the custody of her child.” FOF #33 in no way supports or refers to opinion#2.
One has absolutely nothing to do with the other and yet charges and specifications were brought against Captain M_(Applicant) based on this unsupported opinion.  Once again no level of command, including the defense representative, has commented on this glaring error indicating no one actually read the command investigation including its author.
9.  Although Captain M_(Applicant) was charged with an abuse of his cell phone there is absolutely no proof of this.  The charge is totally based on the number of calls and the time.  This in itself could not support any violation of law especially when the statements lead one to believe that the calls were for counseling which is not only within the scope of Captain M_(Applicant)’s business, but also a responsibility of his.
As stated, for all echelons of command to use this investigation as a basis for issuing an OTH discharge without commenting on its errors, prejudices and unsupported adverse conclusions is wrong.  This alone merits an upgraded discharge.  A Marine deserves better and more attentive treatment prior to issuing such a horrendous and basically undeserved discharge.
It must be noted that when Captain M_(Applicant) later found out that the IO (without telling him Sgt G_ had changed her story) recommended a GCM then Captain M_(Applicant) did what the IO should have done.  Captain M_(Applicant) approached people who knew the facts and were unimpeachable.  He obtained statements that proved that Sgt G_ was lying and he was with other people for the entire times and dates that Sgt G_ said adultery happened.  He also obtained a statement from a Sgt Major that Sgt G_ herself admitted she was coerced and intimidated into changing her initial denial.
When all this proof was presented the command did not order a new investigation as it should have.  It merely continued the process as if it didn’t really matter that she lied.  Sgt G_ was believed over all the civilians; officers; and very senior SNCO’s who said she was lying.
It must also be noted that the investigator never took any testimony under oath except for one statement and the General Court Martial was referred on unsworn testimony without any Art 32 investigation rendering later procedures untrustworthy and void.  This referral to a GCM was also against JAG Manual regulations, that prohibit a GCM referral based solely on this type investigation.  (See last sentence Para 0218 JAG Manual)
In addition Rule 601 of the Manual for Courts Martial is subsection (2) (A) prohibits referral without substantial compliance with R.C.M.  405.  A careful reading of Rule 405 makes it clear that the Command Investigation did not comply with its provisions especially as to rights to be present and cross examination.  The Command Investigation did not satisfy Rule 405 (b) or (f) in particular.  In fact the provisions of Rules 401 through 407 have been ignored rendering the referral void.  Without a proper referral the whole pre-trial agreement is meaningless and renders the OTH Discharge void because of lack of due process and fairness.

XV.  Crucial evidence relevant to the type of discharge issued was never considered by Higher Authority.
As has been discussed previously relevant correspondence favorable to Captain M_(Applicant) was never considered even though submitted to the Marine Corps and Secretary of the Navy well before Captain M_(Applicant) was discharged.  Even though on numerous occasions the Appellant requested all correspondence; document; or letters considered and the Marine Corps certified on 21 Oct 2003 that they had supplied all of that material the following documents vital to the M_(Applicant) discharge have never even been supplied or referred to.  The only rational conclusion is they were never forwarded; attached to the discharge package or ever considered as required by law.  A partial list of some of those items follows:

1.  Complete Military Record of Captain M_(Applicant).
2.  Captain M_(Applicant)’s rejection of 1^st Resignation Letter and his substitute resignation.
3.  Letter from Vietnam Veterans of America.
4.  Two letters of Col R_ T_ USMC (Ret) dated 20 Feb 2002.
5.  Letter (4pages) of Lt. Col O_ USMC (Ret) Attorney at Law dated 4 April 2003 sent by Fed Ex to both CMC and SEC NAV.
6.  Letters of extenuation and mitigation sent by family members.
7.  Two letters of Major J_, his CO, urging against an OTH discharge and stating Captain M_(Applicant) was still in his command billet in R.S. B_.
8.  Statement from Captain J.A. J_.
9.  Statement from Mr. L_ D_.
10.  Statement from Captain V. W_.
This incomplete list in itself is proof that neither CMC nor SEC NAV completed the mandated review before issuing the OTH Discharge and this alone requires an upgrade to Honorable.  Please note that it is contended that when the statements, which were tendered at NJP by Captain M_(Applicant), were not forwarded with the report of NJP it rendered the record “Non Verbatim”, which violated the law and made subsequent decisions on the OTH void.

XVI.  This Discharge is inequitable, unfair and inconsistent when compared with past actions of SECNAV.
Generally speaking, the Boards examining specific discharges are not limited to legal issues alone, but may consider error, injustice or inequity using reasonable standards of law, equity and discipline in deciding whether a discharge should be upgraded.  Although it is safe to say that even though our system of jurisprudence forbids arbitrarily singling out individuals for trial and discipline based on similar incidents, the military services have held commanding officers to a higher standard than their subordinates.  An example of inequity and injustice would be allowing junior officers to be treated more harshly than their seniors especially when the offense of a junior is less egregious than that of a senior commander.
It must be remembered that this appellant was not only found Not Guilty of Adultery and false statements but also presented unequivocal statements from unimpeachable sources that he could not have committed the serious crimes alleged.  (As presented in a prior issue the command should have sent those statements for further investigation rather than accept an obvious shoddy and incorrect investigation but they did not.)
It is only fair for the appellant to wonder how other officers, mainly senior to him, have been treated for offenses mostly greater than his.  To this end he inquired as to how the Secretary of the Navy disposed of cases involving Commanding Officers within the Navy who had been accused of offenses.  That answer is attached as enclosure (32).  Also attached, as enclosures (33) and (34), are newspaper articles relevant to this subject.
Enclosure (32) is a Department of Defense Information Paper which clearly states that from 1999 through 2004 there were 71 commanding officers relieved of their commands for cause.  NOT ONE OF THEM RECEIVED AN OTH DISCHARGE.  In fact only 1 was discharged with formal disciplinary action and he received an Honorable Discharge.  Enclosure (33) states that “Adultery, alcohol abuse and inappropriate relationships with subordinates...” were among the reasons commanding officers were relieved for cause and that Navy Officials revealed that “a number of those with behavior problems held the rank of Captain...”  It is inconceivable that facing these numbers and results that anyone could maintain that the OTH Discharge in this case was either equitable or just.
In order to show this inequity is not confined to the U.S. Navy we have attached enclosure (34).  When you compare what the General did over the years compared to what appellant is found to have done it is just basically unjust and unfair to give the General an Honorable Discharge and the appellant an Other Than Honorable.  The General was the senior responsible for enforcing all the laws and has probably signed off on hundreds of Less than Honorable Discharges.  Yet his own conduct is immune from such a result.  His “formal reprimand” was based on “sexual affairs over the last decade with more than a dozen female officers, enlisted women and civilians....” Despite all this his discharge will be “Honorable”.
It is requested that the reader of this brief reexamine the transcript of Captain M_(Applicant)’s N.J.P.  In it he denies any sexual contact with Sgt G_ and offers proof that he is telling the truth.  What he admits to is perhaps being too much of a friend in advising her concerning her many personal problems.  (Not a crime).  For this admission he gets an Other Than Honorable Discharge while no commanding officer relieved for much more serious offenses gets one and the highest ranking Air Force Lawyer is hardly punished.
This certainly is the definition of inequity and injustice and necessitates an Honorable Discharge for appellant based on a change in careers.

(Appellant is attempting to get the complete Navy IG Report through FOJA request).”

Documentation

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

Computer disc containing orders and regulations
Letter from the Applicant, dtd July 9, 2004
Letter from Headquarters United States Marine Corps to Congressman T_ B_, dtd 	June 17, 2003 (2 pages) (2)
Letter to Applicant from Board for Correction of Naval Records, dtd June 20, 2005
Applicant’s DD Form 149, dtd May 15, 2005
General Brief from Applicant (8 pages)
Marine Corps message R210800Z Mar 01, MARADMIN 135/01 (2 pages)
Excerpt DOD Instruction 1332.40, dtd September 16, 1997 (2 pages)
US Code collection, 9 pages printed from a web site
Enclosure 6 (An extract from a document with no specific title) (3 pages)
E-mail from C_ M_(Applicant) to his counsel dtd March 20, 2003
Sworn statement of Captain M_(Applicant) (6 pages) dtd December 31, 2004
California all-purpose acknowledgment (notary)
Two Fed Ex receipts for documents sent to HQMC and SEC NAV (2 pages)
Letter from Applicant to Honorable T_ B_, dtd July 14, 2003
Letter from Headquarters United States Marine Corps, dtd October 21, 2003 (2 	pages)
Two letters by Col. T_ on behalf of Captain M_(Applicant), one dtd February 20, 	2002 (3 pages)
Newspaper Article
Four pages from Applicant’s service record
Letter from S_ I_ , Member of Congress of the United States, dtd April 2, 2004 (2 	pages)
Excerpt from Marine Corps Separation and Retirement Manual, Para 4104, page 4-	12
Excerpt cover page MCO P5800.l6A dtd August 31, 1999
Excerpt MCO Pl900.l6F,dtd 3l May 2001
Excerpts from SECNAV Inst 1920.6B encl (4) Para 9 (2 pages) dtd December 13, 	1988
Second page from the Pre Trial Agreement, dtd January 20, 2003
Sample form for voluntary waiver of a Board of Inquiry (2 pages)
Memorandum of PreTrial Agreement, dtd January 30, 2003 (3 pages)
Letter from Commanding General, Marine Corps Recruiting Command to Applicant, 	dtd March 31, 2003
Letter from Capt J_ T. L_, Detailed Defense Counsel to Chairman of the Board for 	Correction of Naval Records, dtd November 4, 2004
E-mail from Capt T_B. M_, Defense Counsel, to LCDR M_E_B_, dtd March 31, 	2003
Memorandum for the Assistant Secretary of the Navy (M & RA), dtd May 12, 2003
Charge Sheet for Applicant, dtd of Referral January 10, 2003 (6 pages)
MARADMIN Msg 542/02, dtd October 9, 2002
Letter from Commanding Officer, Marine Corps Recruiting Station, Baltimore, MD, 	dtd January 27, 2003 
Letter from Congressman T_ B_, Member of Congress, to USMC Liaison, dtd April 	1, 2003
Letter from Applicant to Representative T_B_, dtd April 1, 2003
Personal statement from Sergeant Major A_ S. A_, Jr., undtd
Department of Defense Information Paper, undtd
Two newspaper articles
Letter to Board for Correction of Naval Records from the Applicant, undtd
Letter from Headquarters United States Marine Corps to Honorable T_ B_, dtd June 	17, 2003 (2 pages)
Letter from Applicant, dtd August 15, 2005 (2 pages)
Applicant’s DD Form 214
Applicant’s DD Form 215

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR (DEP)	19951016 - 19950127	COG
	Active:   USMCR (OCS)	19960128 - 19960404	HON
		USMCR	19960405 - 20000924	HON

Period of Service Under Review:

Date of Regular Commission:  20000925		Date of Discharge:  20030509

Length of Service (years, months, days):

Active:    02  07  15
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  27

Years Contracted:  Indefinite

Education Level:  16

Highest Rank:  Capt				MOS:  1302

Final Officer’s Evaluation Averages:

Proficiency:  NA*				Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Navy and Marine Corps Achievement Medal w/1, National Defense Service Medal w/1*, Sea Service Deployment Ribbon, Navy Unit Commendation, Letter of Appreciation (2), Certificate of Commendation

*Not Applicable

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

UNDER OTHER THAN HONORABLE CONDITIONS/UNACCEPABLE CONDUCT, authority:  MARCORSEPMAN Par. 4101 and SECNAVINST 1920.6B

Chronological Listing of Significant Service Events:

000925:	Applicant accepted Regular Commission.

021127:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ).
Charge I:  Violation of the Uniform Code of Military Justice, Article 92:
Specification:  In that Captain C_ S. M_(Applicant), U, S. Marine Corps, Recruiting Station Baltimore, Fourth Marine Corps District, Eastern Recruiting Region, Marine Corps Recruiting Command, did, at or around Baltimore, Maryland, Beaufort, South Carolina, and other unknown locations, on divers occasions between February 2002 and October2002, violate a lawful general regulation, to wit: U. S. Navy Regulations, dated 14 September 1990, as amended, paragraph 1165, by wrongfully engaging in a personal relationship with Sergeant V_ G. G_, U. S. Marine Corps, that did not respect differences in rank and grade, by:
1) meeting with her in public places, consuming alcoholic beverages with her and engaging in conversations of a personal, private, and romantic nature;
2) inviting her to come up to his hotel room to continue to engage in conversations of a personal, private and romantic nature;
3) engaging in sexual relations with her on divers occasions at motels, at his personal residence, and at her personal residence;
4) contacting her using both government and personal telephones, and engaging in conversations of a personal, private and romantic nature;
5) sending and receiving text messages using government issued cellular phones that were of a personal, private and romantic nature; and
6) counseling and advising her concerning her divorce from her active duty enlisted husband assigned to the same command while engaging in a relationship that was of a personal, private and romantic nature.
Specification 2:  In that Captain C_ S. M_(Applicant), U. S. Marine Corps, Recruiting Station Baltimore, Fourth Marine Corps District, Eastern Recruiting Region, Marine Corps Recruiting Command, who knew of his duty to use the government cellular phone issued to him for official business only, at or around Baltimore, Maryland, on divers occasions between February 2002 and October 2002, was derelict in the performance of this duty in that he willfully failed to use said cellular phone for official business only by placing calls to and receiving calls from Sergeant V_ G. G_ during and after normal working hours that were of a personal, intimate, and romantic nature.
Charge II:  Violation of the Uniform Code of Military Justice, Article 107
Specification 1:  In that Captain C_ S. M_(Applicant), U. S. Marine Corps, Recruiting Station Baltimore, Fourth Marine Corps District, Eastern Recruiting Region, Marine Corps Recruiting Command, did, at Baltimore, Maryland, on 10 October 2002, with intent to deceive, make to Major M_ S. C_, U. S. Marine Corps, an official statement, to wit: that he did not have an inappropriate personal, private, or sexual relationship with Sergeant V_ G. G_, a non-commissioned officer working directly for him, and that any after hours contact he had with her was based on a legitimate need to counsel her concerning her personal problems, or words to that effect, which statement was totally false and was then known by the said Captain M_(Applicant) to be so false.
Specification 2:  In that Captain C_ S. M_(Applicant), U. S. Marine Corps, Recruiting Station Baltimore, Fourth Marine Corps District, Eastern Recruiting Region, Marine Corps Recruiting Command, did, at Baltimore, Maryland, on 18 October 2002, with intent to deceive, make to Major M_ S. C_, U. S. Marine Corps, an official statement, to wit: that Sergeant V_ G. G_, U. S. Marine Corps, had come to his house on only one occasions for the purpose of receiving counseling concerning her personal problems, had been given a quick tour of the house, and then held their conversation on the steps outside the residence, or words to that effect, which statement was totally false and was then known by the said Captain M_ (Applicant) to be so false:
Charge III:  Violation of the Uniform Code of Military Justice, Article 133
Specification:  In that Captain C_ S. M_(Applicant), U. S. Marine Corps, Recruiting Station Baltimore, Fourth Marine Corps District, Eastern Recruiting Region, Marine Corps Recruiting Command, did, at or around Baltimore, Maryland, Beaufort South Carolina and other unknown locations, on divers occasions between February 2002 and October 2002, knowing that Sergeant V_ G. G_, U. S. Marine Corps, was a married enlisted Sergeant directly subordinate to him in the chain of command, that her husband was a Sergeant in the U. S. Marine Corps attached to the command, and that Sergeant. V_ G. G_ was separated and undergoing a divorce, did:
1) engage in a sexual relationship with Sergeant V_ G. G_ at hotels, his personal residence, and her personal residence;
2) use government cellular phones to carry out this inappropriate relationship;
3) write fitness reports and make recommendations concerning awards and recognition of Sergeant V_ G. G_ while carrying out this inappropriate relationship;
4) create the perception of preferential treatment to Sergeant V_ G. G_ in the work place;
5) compromise the chain of command by failing to cease the relationship, and to report up the chain of command rumors or allegations of a suspected inappropriate sexual relationship between himself and Sergeant V_ G. G_ upon receiving notice from Sergeant L_ L. F_, U. S. Marine Corps, a subordinate working in the same office as both Captain M_(Applicant) and Sergeant V_ G. G_ that such rumors existed; and 
6) lie to his chain of command about the nature of his relationship with Sergeant V_ G. G_ in order to protect himself and Sergeant V_ G. G_ from possible discovery and punishment, such conduct unbecoming an officer and gentleman.
Charge IV: Violation of the Uniform Code of Military Justice, Article 134
Specification 1:  In that Captain C_ S. M_(Applicant), U. S. Marine Corps, Recruiting Station Baltimore, Fourth Marine Corps District, Eastern Recruiting Region, Marine Corps Recruiting Command, did, at or around Baltimore Maryland, Beaufort, South Carolina, and other unknown locations, on divers occasions between July 2002 and October 2002, wrongfully have sexual intercourse with Sergeant V_ G. G_, U. S. Marine Corps, a married woman not his wife.
Specification 2:  In that Captain C_ S. M_(Applicant), U. S. Marine Corps, Recruiting Station Baltimore, Fourth Marine Corps District, Eastern Recruiting Region, Marine Corps Recruiting Command, did, at Baltimore, Maryland, during October 2002, wrongfully endeavor to impede an investigation into allegations of fraternization, adultery, and willful dereliction of duty involving himself by:
1) upon receiving a report from Sergeant L_ L. F_, U. S. Marine Corps that Sergeant V_ G. G_ had informed her that she had engaged in a sexual relationship with Captain M_(Applicant), told her that he would take care of it and then failed to report this allegation up the chain of command, as it was his duty as executive officer, Recruiting Station Baltimore, to do;
2) upon being questioned concerning his relationship with Sergeant V_ G. G_ by Major M_ S. C_, U. S. Marine Corps, lied to Major C_ and denied having an inappropriate sexual relationship with Sergeant V_ G. G_, and sought to justify numerous after hours phone calls using government phones as a form of legitimate counseling of a subordinate; and
3) upon discovering that Sergeant V_ G. G_ had made statements concerning their sexual relationship and may have described the layout of his residence, made a false statement that he had given a brief tour of his quarters to Sergeant V_ G. G_ in order to apparently justify her otherwise unusually specific knowledge of the layout of his residence.  [Extracted from supporting documents provided by the Applicant.]

030110:	Charges referred to general court-martial.  [Extracted from supporting documents provided by the Applicant.]

030130:	Memorandum of Pretrial Agreement.  The Applicant certifies:  “That for the good consideration and after consultation with my counsel, I agree to the resolution of the charges and specifications listed below at Commanding General’s Nonjudicial Punishment, provided the convening authority agrees to withdraw the charges and specifications for the general court-martial.”
	Applicant pleas as follows:
	Charge I: Violation of UCMJ, Article 92.  Plea:  GUILTY.
	Specification 1: Fraternization with Sgt G_. Plea: Guilty, except for the words “and romantic” and “engaging in sexual relations with her on divers occasions at motels, at his personal residence, and at her personal residence”; of the excepted words, NOT GUILTY; of the specification as excepted, GUILTY.
	Specification 2: Dereliction of duty. Plea: GUILTY, except for the Words “intimate, and romantic”; of the excepted words, NOT GUILTY; of the Specification as excepted, GUILTY.
Charge II: Violation of UCMJ, Article 107.  Plea:  GUILTY.
	Specification 1: False statement on 10 October 2002. Plea: GUILTY, except for the words “or sexual”; of the excepted words, NOT GUILTY; of the specification as excepted, GUILTY.
Specification 2: False statement on 18 October 2002. Plea: NOT GUILTY.
Charge III:  Violation of UCMJ, Article 133.  Plea: GUILTY.  
Specification: Inappropriate relationship with Sgt G_.  Plea:  GUILTY, except for the words “a sexual “ and words “at hotels, in his personal residence, and her personal residence”; of the excepted words, NOT GUILTY; of the specification as amended, GUILTY.
	Charge IV:  Violation of UCMJ Article 134.  Plea:  NOT GUILTY.
	Specification 1:  Adultery with Sgt G_.  Plea: NOTY GUILTY.
	Specification 2:  Obstructing Justice.  Plea: NOT GUILTY. 
	Plea:  Not Guilty.  Finding:  Not Guilty.
	[Extracted from supporting documents provided by the Applicant.]
	
030131:	NJP for violation of UCMJ, Article 92:
	Plea:  Guilty*.  Finding: Guilty *.
	Specification 1: Fraternization with Sgt G_.
	Plea: Guilty*.  Finding: Guilty*.
Specification 2: Dereliction of duty.
Plea: Guilty*.  Finding: Guilty*.
Violation of UCMJ, Article 107:
Plea:  Guilty*.  Finding: Guilty*.
	Specification 1: False statement on 10 October 2002.
	Plea:  Guilty*.  Finding: Guilty*.
Specification 2: False statement on 18 October 2002.
Plea:  Guilty*.  Finding:  Guilty*.  
Violation of UCMJ, Article 133:
Plea:  Guilty.  Finding:  Guilty.
Specification: Inappropriate private and personal relationship.
	Plea:  Guilty.  Finding: Guilty.
	Violation of UCMJ Article 134:
	Plea:  Not Guilty.  Finding: Not Guilty.
	Specification 1:  Adultery with Sgt G_.
	Plea:  Not Guilty.  Finding:  Not Guilty.
	* By exceptions according to terms of the Pretrial Agreement.
Award:  Forfeiture of $1000 per month for 2 month, and a punitive letter of reprimand.  Not Appealed.  [Extracted from Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, South Carolina, and dtd February 25, 2003].

030131:	Applicant received a punitive letter of reprimand.

030131:	Applicant voluntarily tendered resignation to the Secretary of the Navy, for the good of the service in lieu of processing for administrative separation for cause.  Applicant requested a characterization of honorable. The Applicant understands that he may receive an other than honorable characterization.  

030225:	Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC, submits Report of Nonjudicial Punishment to Commandant of the Marine Corps (JAM) recommending that the Applicant’s resignation request be approved and that the Applicant be separated under other than honorable conditions.

030320:	Commandant of the Marine Corps (Deputy Commandant for Manpower and Reserve Affairs) submits Report of Nonjudicial Punishment and Applicant’s request for resignation in lieu of further administrative processing for cause, to the Assistant Secretary of the Navy, Manpower and Reserve Affairs (M&RA) for review and final action.    Commandant of the Marine Corps recommends approval of resignation with service characterized under other than honorable conditions by reason of unacceptable conduct.

030408:	Assistant Secretary of the Navy (M& RA) approved Applicant’s resignation/discharge under other than honorable conditions by reason of unacceptable conduct.

030512:	Addendum Memorandum For the Assistant Secretary of the Navy (M&RA) submitted by the Staff Judge Advocate to the Commandant of the Marine Corps.  Subject:  Report of Nonjudicial Punishment In the Case of Captain C_S. M_.  “The following additional information is provided to Captain M_’s case:  Paragraph 3, d of the reference (Deputy Commandant for Manpower and Reserve Affairs, ltr 1920 of 20 Mar 03), contains a ministerial error and incorrectly states that Captain M_ was found guilty of two specifications of violating Article 107, UCMJ.  The fact that Captain M_ pleaded not guilty to specification 2 of charge 2, a violation of Article 107, UCMJ (false statement) and was subsequently found not guilty of said charge, was not stated.  The correct information was contained in Captain M_’s pretrial agreement wherein Captain M_ agreed to avoid a General Court-Martial.  The correct information was also contained in the verbatim transcript of Captain M_’s nonjudicial punishment.  Captain M_ was separated from the Marine Corps on 9 May 2003.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030509 by reason of unacceptable conduct (A, B, C) with a service characterization of under other than honorable conditions.  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).  

Issues 1,2,3,4,5,6,7,8,9,10,15.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  The record contains no evidence of any wrongdoing by the government or anyone involved in the administrative discharge process.  The Applicant signed a Memorandum of Pretrial Agreement wherein he agreed to the resolution of charges and specifications at Commanding General’s Nonjudicial Punishment, provided that the convening authority agreed to withdraw the charges and specification from General Court-Martial.  As part of consideration for the pretrial agreement, the Applicant agreed to voluntarily tender his resignation to the Secretary of the Navy for good of the service in lieu of processing for administrative separation.  The Applicant acknowledged that he understood that the least favorable characterization of service that he could receive was under other than honorable conditions.  Relief denied.

Issues 11, 16.  The Board disagrees with the Applicant's contention that the discharge was inequitable.  After reviewing the Applicant's entire service record, the Board found that the characterization of the Applicant's discharge as under other than honorable conditions was equitable and consistent with the characterization of discharge given others in similar circumstances.

Issues 12, 13,14.   Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Issues 12, 13, and 14 refer to the Applicant’s duties as an Executive Officer, the actions of the Marine Corps Office of Legislative Affairs, and a Command investigation and do not fall within the NDRB review responsibilities. 

When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  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, during which he pled guilty to violations of Articles 92 (2 specs, fraternization and dereliction of duty), 107 (false statement), and 133 (inappropriate private and personal relationship) of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Chapter 4, Paragraph 4101 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 September 2001 until Present), INITIATING SEPARATION OF AN OFFICER – NOTIFICATION.

B.  Chapter 4, Paragraph 4102 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 September 2001 until Present), PROCESSING FOR SEPARATION, states:

C.  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. 14 Mar 97.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		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