DEPARTMENT OF THE NAVY

BOAR3 FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370.510

0

AEG
Docket No: 4591-99
20 September 2001

Dear 

Mr.-:

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.

Your allegations of error and

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on   18 September 2001.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary material considered by the Board consisted of
Board.
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.
The Board also considered the advisory opinions,
dated 6 July and 1 August 2001,
(JAM) and Separation and Retirement Branches of Headquarters
Marine Corps.

Copies of those opinions are enclosed.

furnished by the Military Law

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.

The Board found that you began military service on 11 May 1998 by
enlisting in the Marine Corps Reserve as a member of the Platoon
In August 1989 you completed two months of
Leaders Class (Law).
officer training and were commissioned a second lieutenant (O-l)
in the Marine Corps Reserve.
passing the bar examination, you began a period of extended
active duty on 11 December 1991 as a first lieutenant (O-2) in
the Marine Corps Reserve.
You then attended The Basic School
from 12 April to 30 September 1992.

After completing law school and

On 17 October 1992, you reported for duty under instruction to
the Naval Justice School, Newport, RI.
Lieutenant (LT; O-3) Myra M was assigned to Officer
Indoctrination School at the same location.
LT M and you transferred from
Gunnery Sergeant (GYSGT; E-7) M.
She
Newport on 30 October and 18 December 1992, respectively.
reported for duty to Naval Hospital, Beaufort, SC on 6 November

At that time, a

She was married to a

1992 and you reported to a unit at Camp Pendleton, CA on 8
January 1993.
You then served for more than two years in an excellent to
outstanding manner as a judge advocate.
captain (CAPT;
O-3) in September 1993,
Marine Corps in July 1995,
Medals for outstanding performance of duty as a protocol officer
in 1994-95, and received exemplary fitness reports.

were awarded two Navy Commendation

You were promoted to

augmented into the Regular

LT M made several trips to California from January 1993 through
June 1995, and was assigned periods of temporary additional duty
at Camp Pendleton in December 1993 and April 1995.
you actively sought reassignment to  
July 1995, you reported for duty at the  
At that time, LT M was still assigned to the nearby naval
hospital and her husband, GYSGT M, was assigned to the support
battalion of the recruit training regiment on  

Subsequently,
Parris Island, SC and, on 28
Parris Island Law Center.

Parris Island.

but did not disclose the identity

A subsequent investigation revealed that sometime in the Fall of
1995, GYSGT M confided in his battalion executive officer, Major
(MAJ; O-4) H, that he suspected his wife was having an affair.
GYSGT M later told MAJ H that a friend of his who worked for the
Central Intelligence Agency (CIA) had confirmed this suspicion,
and indicated that his wife's paramour was from California.
GYSGT M subsequently told MAJ H that he had confronted his wife
and she admitted to an affair,
of the other individual.
On 4 January 1996 GYSGT M told MAJ H
that he had learned, from his CIA friend, that you were the man
with whom his wife was involved, and further said that he was
going to the law center to confront you.
MAJ H went with GYSGT
M, and both individuals met with the staff judge advocate,
Colonel (COL; O-6) B, who would not permit such a confrontation.
When COL B asked GYSGT M for proof of his assertion that you were
involved with his wife, GYSGT M said that LT M had admitted the
affair to him and said that the relationship had begun when both
of you attended school in Rhode Island.
confronted you with this allegation,
asked to speak to another attorney.
statement of COL B, you were  
conversation.

you declined to comment but
According to a later
shaken" during this

when COL B

"visibly 

Later,

Marine Corps Recruit Depot,

an investigation was directed

Due to the allegations of GYSGT M,
by the Commanding General (CG),
Eastern Recruiting Region.
In his report of investigation dated
19 January 1996,
the investigating officer stated that both LT M
and you had invoked your right to remain silent under Article 31
of the Uniform Code of Military Justice.
indicated that he
and was
that he
through friends he has in the  
The IO interviewed and
obtained statements from MAJ H and COL B, but in his report,
noted that the amount of direct evidence was limited and the only

"respectfully uncooperative."
"learned of the affair and (CAPT  

"did not want to get his wife in any trouble,"

C's; your) involvement

Further, GYSGT M

However, GYSGT M did state

CIA."

2

witness information was hearsay. Nonetheless, he believed that
the information he obtained was reliable.

"to accept
(CG's) nonjudicial
. not to contest the findings at that

On 19 January 1996 you and your military counsel signed a
Memorandum of Agreement in which you agreed  
disposition of the allegation against me at  
punishment (NJP) and
proceeding, or on appeal of that  
that it was "expressly understood" that at NJP, the CG could
impose
also attached a resignation from the Marine Corps to the
memorandum and requested an honorable discharge, but acknowledged
that a general discharge could be issued.
resignation upon the  
issuance of no worse than a general discharge.

"any lawful punishment permitted to be awarded . . .  

CG's approval of the agreement and upon the

You conditioned the

You acknowledged

proceeding.tt

 

. . 

I1 You

In return, the CG certified that he would dispose of the
allegations against you by addressing only a single specification
of adultery at NJP; permit you to accept NJP without entering a
plea and allow you to remain silent during the proceedings; and
would not require you to testify or provide information
pertaining to allegations against LT M.
The CG also certified
that he would favorably endorse your resignation and recommend no
worse than a general discharge, and that he would set aside the
NJP if the Secretary of the Navy (SECNAV) disapproved your
request for an honorable or general discharge.
1996, the CG signed the Memorandum of Agreement.

On 22 January

On 22 January 1996 the CG initiated NJP action for the following
violation of UCMJ Article 134:

In that (CAPT C)
.
. . 
between about October  
wrongfully have sexual intercourse with (LT M), a married
woman not his wife.

did, at an unknown location,

1692 and about January 1996,

 

In the letter of that date notifying you of pending NJP action,
you were advised that at the upcoming NJP hearing, you had the
right
'Ito be present during the presentation of all information
against you, including the testimony of witnesses present . .  
You were further advised that if NJP was imposed, you had  
"the
right to appeal to the next superior authority within 5 working
days, if you consider the punishment unjust or disproportionate
to the offense for which it is imposed."

.'I

in accordance with the Memorandum of

Also on 22 January 1996,
Agreement, you waived the right to demand trial by court-martial
and accepted 
hearing, upon completion of which he imposed a punitive letter of
reprimand.
That letter, dated 27 January 1996, was delivered to
you on 29 January 1996,
at which time you declined to appeal the
NJP or submit a statement concerning the letter.

On 25 January 1996 the CG held an NJP

CGls NJP.

3

The CG forwarded your resignation and recommended

On 30 January 1996 the CG reported to the Commandant of the
Marine Corps that he had imposed NJP pursuant to the Memorandum
of Agreement.
that it be accepted.
However, your resignation was disapproved because it was
determined that the Memorandum was an integral part of the
resignation, and it appeared to impermissibly limit  
authority to take action in the case.
inquiry (BOI) was convened to give you an opportunity to show
cause for retention in the Marine Corps.

He further recommended a general discharge.

Accordingly, a board of

SECNAV's

Apparently in response to the notification of BOI proceedings,
you submitted a second resignation on 8 April 1996.
on 12 April 1996 the CG once again favorably endorsed your
resignation and recommended a general discharge.
the Deputy Chief of Staff for Manpower and Reserve Affairs
recommended that SECNAV accept the resignation and direct a
general discharge. On 11 June 1996, acting for SECNAV, the
Assistant Secretary of the Navy for Manpower and Reserve Affairs
approved those recommendations.

On 16 May 1996

In response,

The Certificate of Release or Discharge from Active Duty (DD Form
214) shows that on 19 July 1996 you were separated with a general
discharge by reason of
"resignation (unacceptable conduct)" and a
separation code of  
nearly five years active service.
to reflect the two Navy Commendation Medals you received.

At that time, you had completed

However, the DD Form 214 fails

llBNC1.ll

The Board considered your contentions that the CIA improperly
collected evidence that was used against you at NJP; there was
insufficient evidence to find you guilty at NJP; the CG was not
impartial; your service should be characterized as honorable; and
the reason for separation should be changed.
However, the Board
concurred with paragraphs 3b through  
advisory opinion from JAM to the effect that these contentions
are without merit.

3d, and 3f and  

3g, of the

Concerning your contention that the Memorandum of Agreement
improperly restricted your right to appeal the NJP, the Board
disagreed with paragraph 3e of the JAM advisory opinion to the
extent that it states that an individual may not appeal adverse
findings against him at an NJP.
Paragraph 7a of Part V to the
Manual for Courts-Martial   (1995) states that an appeal may be
submitted by a servicemember who considers the punishment to be
"unjust or 
Certainly, an individual who
believes the findings were improper or unfair considers the NJP
to have been unjustly imposed.
Accordingly, the findings are
subject to appeal.
instances in which an individual has appealed an NJP on this
basis, and the appeal authority has accepted the appeal and
resolved the issue on its merits.
error in the provision of the Memorandum precluding an appeal of
the NJP findings since the Board concluded that you could
properly bargain away this right during the negotiation process.

In this regard, the Board has seen numerous

Nevertheless, there was no

disproportionate-t'

4

I

Moreover, the Board noted that you do
the Memorandum stating that you would
the NJP.

not attack the provision of
not contest the findings at

Based on the foregoing, the Board can
find no basis to remove the
NJP from your record,
upgrade your discharge or change the reason
for separation.
Accordingly, your application has been denied.
The names and votes of the members of the panel will be furnished
upon request.

The Board did not consider your request to change the DD Form 214
to reflect the two Navy Commendation Medals you received, since
such action is an administrative correction that does not require
action by the Board.
You may request a Correction to DD Form 214
(DD Form 215) by writing to the National Personnel Records Center
(Military Personnel Records), 9700 Page Avenue, St. Louis, MO
63132-5100.

It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures

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