Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: chananuch.reed
Company: NCPB

Docket No. MD10-01600

ex-Capt, USMC

Current Discharge and Applicant’s Request

Application Received:  20100625
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) UNACCEPTABLE CONDUCT
Authority for Discharge: (per DD 214) SECNAVINST 1920.6B

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

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	19951016 - 19960127  COG	Active:	USMCR (OCS)	19960128 - 19960404  HON
				USMCR		19960405 - 20000924  HON

Period of Service Under Review:
Date of Appointment:  20000925	Age at Enlistment:  27
Period of Enlistment:  Indefinite
Date of Discharge:  20030509	Highest Rank:  CAPTAIN
Length of Service:  02  Year(s)  07  Month(s)  15  Day(s)
Education Level:  16	AFQT:  NFIR
Officer’s Fitness Reports:  Available

Awards and Decorations (per DD 214):	NMCAM (W/1 STAR), NDSM (W/1 STAR), SSDR, NUC, LoA (2), CoC

Periods of UA/CONF:  NONE

NJP:  1

- 20030131:	Article 92 , 2 specifications
	Specification 1: Fraternization with Sgt G_
	Specification 2: Dereliction of duty
	Article 107 (False official statement)
	Article 133 (Inappropriate private and personal relationship)
	Awarded: FOP, Punitive Letter of Reprimand.     Suspended:  NONE  [Extracted from Commanding General’s letter dated 20030225.]

SCM:  NONE     SPCM:  NONE     CC:  NONE     Retention Warning Counseling:  NONE

NDRB Documentary Review Conducted (date):	20060216
NDRB Documentary Review Docket Number:	MD05-01228
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:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☒	Community Service:	☐	References:	☒
	Department of VA letter:	☐	Other Documentation:	☒
		Additional Statements:
	From Applicant:	☐	From/To Representation:	☒	From/To Congress member:	☐

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.

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

Applicant’s Issues

1.	The Applicant contends his characterization of service is inequitable in light of his service prior to his misconduct and his post-service conduct.

Decision

Date:  20110817	DOCUMENTARY REVIEW	Location: Washington D.C.	 Representation: Civilian Counsel

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 UNACCEPTABLE CONDUCT.

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 NDRB 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 General Officer nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92                                     (Failure to obey an order or regulation, 2 specifications), Article 107 (False official statement, 1 specification), and Article 133 (Inappropriate private and personal relationship, 1 specification).  To avoid a trial by General Court-Martial, the Applicant executed a pre-trial agreement in which he agreed to accept NJP and subsequently submit an unqualified letter requesting approval of his resignation.  The Applicant’s request for resignation of his commission was accepted; he was subsequently separated from the Marine Corps with an Under Other Than Honorable characterization of his service for Unacceptable Conduct.  

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his characterization of service is inequitable in light of his service prior to his misconduct and his post-service conduct, and that the characterization of his service was overly harsh.  The NDRB carefully considered the Applicant’s service record, his personal testimony, and the documentary evidence he submitted.  The evidence showed the Applicant had performed very well as a Marine officer until the time of the misconduct.  The NDRB also found the Applicant has had a highly successful, post-service life - both personally and professionally.  The Applicant’s total service record reflects three distinct periods of service.  The Applicant has an Honorable characterization of service for initial officer training from January 1996 to April 1996.  He subsequently accepted a reserve commission in April 1996.  He served this period honorably, was discharged, and accepted commission in the Marine Corps as a Regular Officer on 24 September 2000.  Having received a DD-214 for these preceding periods of service, the NDRB’s review is restricted to the current period of commissioned service from September 2000 to May 2003.  The NDRB found the Applicant’s misconduct of record to be far outside the bounds considered acceptable for a Marine officer.  The misconduct of record was extremely prejudicial to good order and discipline, had a significant negative effect on the unit, and set an exceedingly poor example for subordinate Marines.  The NDRB found the Applicant’s violation of Article 133(Inappropriate private and personal relationship), coupled with violation of Article 107 (False official statement), to constitute deliberate acts and omissions that constituted a significant departure from that conduct expected of members of the Naval Service - particularly a Marine officer.  This misconduct warranted an Under Other Than Honorable characterization of service.  The NDRB determined that a preponderance of the evidence supported the misconduct of record and the legal action taken by the command.  The Applicant’s prior outstanding record of service (two periods of documented Honorable service) and his commendable post-service conduct were insufficient to overcome the serious and discrediting nature of the Applicant’s misconduct of record.  As such, by a vote of 5-0, the NDRB determined that an upgrade would be inappropriate.     

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, testimony, and the discharge process, the NDRB determined that the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain UNACCEPTABLE CONDUCT.

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 Disabled American 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 their 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 - Nonjudicial 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