Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. MD07-00189

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

ex-CAPT, USMC
MD07-00189

Current Discharge and Applicant’s Request

Application Received:  20071127	Characterization Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  MISCONDUCT 	Authority:  MARCORSEPMAN 1900.16F & SECNAVINST 1920.6B

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)  
			Narrative Reason change to: END OF OBLIGATED SERVICE
Applicant’s Issues:	1.  One isolated incident.
			2.  Record of service.
			3.  Inequitable and prejudicial punishment.	
			4.  Post service.

Decision

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Date:  20071002      DOCUMENTARY REVIEW      Location:  Washington D.C.        Representation: civilian Counsel  

 The Board found that the discharge was proper and equitable.

Issues 1 and 2 (Equity).  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  There is credible evidence in the record that the Applicant violated the UCMJ.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  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.  Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of one nonjudicial punishment (NJP) for a violation of the Uniform Code of Military Justice (UCMJ), Article 133, Conduct unbecoming an officer and one punitive letter of reprimand.  A violation of UCMJ Article 133 is considered a serious offense for which dismissal is authorized if adjudged by a Special or General Courts Martial.  An upgrade to general (under honorable conditions) would be inappropriate.  

Issue 3 (Equity).  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant implies that he was treated unfairly by his unit.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command unfairly singled him out for discipline.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 4 (Equity).   The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service,  and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.   

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	     		Active:   19890728 - 19900712  HON
Period of Service Under Review:
Date of Commission: 20040525	Years Contracted: INDEF; Extension:  NONE.  	Date of Discharge:  20040203
Length of Service:  09  Yrs  09  Mths  01  Dys	Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  16	Age at Commission:  22	AFQT:  NOT FOUND IN RECORD	MOS:  0202/3404  
Highest Rank:  CAPT 
Fitness reports:  AVAILABLE FOR REVIEW
Awards and Decorations (per DD 214):  RIFLE QUALIFICATION BADGE (EXPERT 3RD AWD), PISTOL QUALIFICATION BADGE (EXPERT 4TH AWD), NAVY AND MARINE CORPS COMMENDATION MEDAL, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, NATIONAL DEFENSE SERVICE MEDAL (2ND AWD), SEA SERVICE DEPLOYMENT RIBBON (2ND AWD), ARMED FORCES EXPEDITIONARY MEDAL, MERITORIOUS UNIT COMMENDAITON, NAVY UNIT COMMENDATION, LETTER OF APPRECIATION (2ND AWD)

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20030106:	Charges preferred against Applicant.  [Extracted from CG Training Command’s later of 20030317.  No further information found in record.]

20030106:	Applicant signs Pre Trial Agreement.  [Extracted from CG Training Command’s ltr of 20030317.  No further information found in record.].

20030124:	CO's NJP -- Viol UCMJ Art. 133 – Conduct Unbecoming (3 specs).  Awarded – Letter of Reprimand and FOP ($2,136.00) for 2 months.

20030130:	Applicant’s Appeal of NJP.

20030207:	Training and Education Command denies Appeal.

20030310:	Punitive Letter of Reprimand issued to Applicant.

20030317:	CG, Training Command forwards Report of NJP and recommends that Applicant be required to show cause.

20030610:	Applicant submits voluntary waiver of BOI.  In the request the Applicant noted that he had consulted with counsel.  He requested a General Discharge, but indicated that he understood his waiver could result in an Other Than Honorable Discharge.  He admitted committing misconduct (an adulterous relationship with Ms. M_ B_ and a violation of orders not to have contact with potential witnesses).  The Applicant stated that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses.  He further certified a complete understanding of the negative consequences of his actions and of an Other Than Honorable Conditions characterization of service.

Officer administrative separation

Discharge Process

Report of Misconduct: CG TRAINING COMMAND 20030321			
Show Cause Recommendation:  SHOW CAUSE
Applicant Response: NOT FOUND IN RECORD
Endorsing Recommendation:  SHOW CAUSE
Show Cause Decision: SHOW CAUSE  20030421
Applicant Notified:  NOT FOUND IN RECORD
Applicant Election: NOT FOUND IN RECORD
Board of Inquiry:  APPLICANT WAIVED BOI
COMMANDANT Recommendation:  20031209  SEPARATE	
Characterization: UNDER OTHER THAN HONORABLE CONDITIONS
Separation Authority action:  ASN(M&RA) 20040107  
Reason for Discharge directed:  MISCONDUCT
Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS
Applicant Discharged:  20040203

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  ☒		Other Records:  ☐

Related to Post-Service Period:  	
	Employment:  		☐	Finances:  		☐	Education: 		☐
	Health/Medical Records:  	☐	Substance Abuse:		☐	Criminal Records:  	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
	
Additional Statements From Applicant:  ☒	From Representative:  ☐  
Other Documentation (Describe) ☐      

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005 establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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