Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: donald.e.brown1
Company: NCPB

Docket No. MD09-00328

ex-Capt, USMC

Current Discharge and Applicant’s Request

Application Received:  20081201
Characterization of Service Received:  (per DD 214)  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214)  MISCONDUCT
Authority for Discharge:  (per DD 214) MARCORSEPMAN 4102

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	NONE		Active:	USN	19890728-19900712  HON

Period of Service Under Review:
Date of Appointment:  19940525	Age at Enlistment:  23
Period of Enlistment:  Indefinite
Date of Discharge:  20040203	Highest Rank:  Captain
Length of Service:  09  Year(s)  08  Month(s)  29  Day(s)
Education Level:  16
MOS:  0202/3404
Officer’s Fitness Reports:  NOT APPLICABLE

Awards and Decorations (per DD 214):	Rifle EX (3) Pistol EX (4) NMCCM NMCAM NDSM SSDR AFEM MUC NUC

Periods of UA/CONF:  NONE

NJP:  1
- 20030123:	Article 133 (Conduct unbecoming an officer), 3 specifications
	Specification 1:  Wrongful contact
	Specification 2:  Wrongful contact and attempting to contact
	Specification 3:  Wrongfully have sexual intercourse
	Awarded: PUNITIVE LETTER OF REPRIMAND FOP  Suspended:  NONE  Appealed 20030130.  Appeal denied  20030207

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  NONE

NDRB Documentary Review Conducted (date):	20071002
NDRB Documentary Review Docket Number:	MD07-00189
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

Related to Military Service: 
		DD 214:	☒	Service/Medical Record:	☒	Other Records:	☐

Related to Post-Service Period:	
	Employment:	☒	Finances:	☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:	☐	Criminal Records:	☐
	Family/Personal Status: 	☒	Community Service:	☐	References:	☐
	Additional Statements:
		From Applicant:	☐	From Representation:	☒	From Congress member:	☐

	Other Documentation:  ☐

YesYesNot ApplicableNot ApplicablePertinent Regulation/Law

Pending results of hearing.

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

Applicant’s Issues

1.	Length and quality of pre-misconduct service.
2.    Emotional and non-malicious nature of misconduct.
3.    Nature and quality of post-misconduct military service.
4.    Length and quality of post-service contributions to U.S. National Security.	

Decision

Date:  20091123	PERSONAL APPEARANCE HEARING	Location: Washington D.C.	 Representation: Civilian Counsel

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included  one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 133 (Conduct unbecoming an officer, 3 specifications).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  When required to show cause for retention, the Applicant consulted with qualified counsel and submitted a personal statement to the Secretary of the Navy.  The Applicant voluntarily waived his right to a Board of Inquiry, admitted guilt and acknowledged that he could be separated with an Under Other Than Honorable characterization of service.  

Issue 1-3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable considering the length and quality of his service prior to and following his misconduct.  The Applicant also contends that the emotional and non-malicious nature of his offenses offers some mitigation for his misconduct.  While the Applicant’s record, both prior to and following his misconduct reflects honorable service, it is clear that the Applicant engaged in willful and repeated misconduct over a period of years—specifically, having sexual relations with a woman he knew to be married, and failure to adhere to “no contact” orders given to him by superiors.  The NDRB disagrees with the applicant’s contention that the offenses were not malicious (e.g., affairs of the heart) due to the severity, duration and repeated nature of the misconduct.  The record shows that, when charged with the offenses, the Applicant recognized the severity of his offenses and accepted full responsibility for his actions.  The NDRB advises the Applicant that despite a service member’s record of service prior to or following misconduct, certain serious offenses warrant separation from the Marine Corps in order to maintain good order and discipline—the offenses committed by the Applicant met this standard.  Additionally, an “Under Other Than Honorable Conditions” discharge is appropriate when the basis for separation is commission of an act that constitutes a significant departure from the conduct expected from a service member.  The Applicant’s in-service conduct clearly met this criteria.    
 
Issue 4:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant wishes for the board to consider the length and quality of his post-service contribution to U.S. national security as a basis to gain a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant submitted documentation that supported his claim that since his discharge, he has held steady employment serving in a variety of advisory and managerial billets involving U.S. port security and service as a liaison with foreign government officials regarding national security and nuclear non-proliferation issues.  The Applicant holds a Top Secret security clearance with the Department of Energy in order to conduct his non-proliferation verification and enforcement duties.  This clearance was verified by the Applicant’s supervisor, who attended the hearing.  The Applicant’s supervisor also praised the Applicant’s performance and verified that the clearance was awarded with the Department’s full knowledge of the Applicant’s misconduct with on active duty.  The Applicant and his supervisor also provided documentation on the Applicant’s temporary leave of absence from the Department of Energy in order to serve in Iraq as a civilian senior intelligence analyst in direct support of U.S. Army operations—he served in this capacity for approximately fifteen months.  Due to the considerable documentation provided concerning the Applicant’s post-service accomplishments and professional performance in service to the Nation, the NDRB determined that the Applicant’s in-service misconduct was an aberration and not indicative of his overall character.     

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, discharge process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable at the time of discharge.  However, based on a careful review of the Applicant's documented post-service accomplishments, his official service record, testimony, the testimony of witness in attendance, and the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remainMISCONDUCT.

ADDENDUM:  Information for the Applicant

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

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

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

Reenlistment/RE-code:  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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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

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

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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water