DEPARTMENTOFTHE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

 

TRG
Docket No:
28 August 2003

4176-02

Chairman, Board for Correction of Naval Records
Secretary of the Navy

RECORD 0

(a) Title 10 U.S.C. 1552
(1) Case Summary
(2) Subject's naval record

From:
To:
Subj:

Ref:
Encl:

Pursuant to the provisions of reference (a), Petitioner, a

E-6)‘ and affording him remedial promotion consideration.

1.
former enlisted member in the Marine Corps, filed an application
with this Board requesting that his record be corrected by
reinstating him on active duty in the grade of staff sergeant
(SSGT; 
2.
The Board, consisting of Mr. Cooper, Mr. Pfeiffer and Mr.
Adams, reviewed Petitioner's allegations of error and injustice
on 19 August 2003 and, pursuant to its regulations, determined
that the.corrective action indicated below should be taken on the
., available evidence of record.
Documentary material considered by
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.
3.
to Petitioner's allegations of error and injustice, finds as
follows:
a.

The Board, having reviewed all the facts of record pertaining

Before applying to this Board, Petitioner exhausted all

administrative remedies available under existing law and
regulations within the Department of the Navy.

b.

.

Petitioner's application was filed in a timely manner.
Petitioner reenlisted in the Marine Corps on 3 September

zfter about 12 years of active duty on prior enlistments.
1997 
On 13 January 1998 he was notified of separation processing by
reason of misconduct due to commission of serious offenses,
specifically, sexual harassment and fraternization. An
administrative discharge board 
and recommended discharge under other than honorable conditions
The president of the ADB stated in his report, in part, as
follows:

(ADB) convened on 17 December 1998

. . 

After 
for the respondent, the 
sexual harassment of LCPL 

. discussions with the recorder and the counsel

(ADB) decided not to consider

(M) as a basis for

No witness testimony was received on that

separation.
issue, and we did not consider any of the documents
given us by either counsel relation to that issue in
reaching our findings.

. . . . .

_. 

_.

.

. 

. Based on a preponderance of the evidence

. 
considered, the 
(ADB) did find that a factual basis
exists for separation by reason of misconduct due to
sexual harassment and misconduct due to the commission
of a serious offense, specifically fraternization.
While we had originally agreed with counsel for both
parties not to consider separation (on) the basis of
sexual harassment, it was the unanimous opinion of the
board that (Petitioner) had engaged in sexual
harassment of CPL D, in addition to his fraternization
with her. . . . .
commanding officer (CO) recommended disapproval of the sexual

The
harassment finding because Petitioner and his counsel did not
receive notice of that allegation,
and the initial charge of
sexual harassment was removed after it was agreed that it would
not be a basis for separation.
However, the CO recommended
discharge under other than honorable conditions by reason of
misconduct due to fraternization.
staff judge advocate 
notified of the charges against him and that the evidence
supported the finding that he was guilty of sexual harassment and
fraternization of CPL D.
disapproval of the sexual harassment charge as a matter of
fairness.
Subsequently, the commanding general disapproved the
sexual harassment charge but directed discharge under other than
honorable conditions by reason of misconduct.
discharged on 7 April 1999.
administratively reduced in rank from SSGT to lance corporal
(LCPL; E-3).

In a subsequent review, the
(SJA) found that Petitioner was properly

However, the SJA recommended

At that time, he was

Petitioner was so

d.

Attached to enclosure (1) is a decisional document

prepared by the Naval Discharge Review Board 
In the
discussion portion of the decisional document, the NDRB stated,
in part, as follows:

(NDRB).

In the application's first issue, (NDRB) unanimously
found the Administrative Discharge Board 
its original mandate by finding not only
fraternization, but also the more serious charge of
sexual harassment. Rather than remanding the case for
another hearing on the sole issue of fraternization
before a new, untainted  
(ADB) (the appropriate remedy),
the Command attempted to cure the defect by merely
disapproving the finding of sexual harassment.

The

(ADB) exceeded

2

In the 

(NDRB's) view, this lack of

Command made no attempt to reassess the sentence or
type of discharge (an OTH), thereby irrevocably
tainting the proceedings and prejudicing the ultimate
findings.
administrative, procedural due process is neither
proper, nor equitable.
(NDRB) also noted that, by failing to refer the
applicant's case to Nonjudicial Punishment (NJP) prior
to referral to an (ADB), the command effectively
curtailed the applicant's ability to contest procedural
and evidentiary irregularities such as the subsequent,
unexpected expansion of the charge sheet by the (ADB)
to include sexual harassment.
Similarly, (NDRB) noted
that serious charges, such as sexual harassment, are
normally referred to NJP or Court-martial to ensure the
constitutional due process is scrupulously observed,
thereby avoiding the impasse posed by the current case.
(NDRB) also noted with interest and considered the
manifold (and allegedly conflicting) roles that the
Staff Judge Advocate played in the proceedings.
(NDRB) noted the appearance, if not reality, of a lack
of procedural due process in the proceedings.
Finally, (NDRB) noted with interest and considered the
applicant's submission of four other similarly situated
cases of alleged fraternization/sexual misconduct
aboard MCAS Iwakuni.
The administrative disposition of
these four cases provided useful background to the
(NDRB) in arriving at its equitable and proportional
decision in the current case. (Examples included a
warrant officer who received NJP for adultery but was
retained, a colonel who was fraternizing with an
enlisted Marine but was only relieved of his command,
and a SSGT who was convicted by court-martial of sexual
harassment and fraternization and was reduced in grade
but retained in the Marine Corps.)
(NDRB) is of the unanimous opinion that, due to the
lack of fundamental fairness and procedural due process
permeating this case, the command failed to observe
even minimal administrative due process, thereby
vitiating the findings in this case.
to the serious conflicting nature of the sworn
statements adduced against the applicant, the (NDRB)
has reservations as to the ultimate credibility of the
female accuser.
Indeed, had the applicant been offered
the rights afforded by court-martial, the testimony and
evidence presented would likely not have been

Again,

Additionally, due

3

sufficient to support a findings of guilty.
Therefore,
the (NDRB) grants full relief and changes the character
of the discharge to honorable by reason of secretarial
authority. . . . .

NDRB advised Petitioner to apply to this Board for reinstatement
in the Marine Corps.

e.

A copy of the opinion was provided to Petitioner's

Also attached to enclosure (1) is an advisory opinion
the Board obtained from the Military Law Branch, Headquarters
Marine Corps (HQMC) on the foregoing issues discussed by the
NDRB.
attorney.
The advisory opinion analyzes all the findings of the
NDRB and concludes, in effect,
NDRB, the administrative discharge proceedings were conducted in
accordance with regulations.
Petitioner not be reinstated in the Marine Corps and states, in
part, as follows:

that despite the opinion of the
The opinion also recommends that

sta,ted above, Petitioner was recommended for

(The governing regulations) authorizes separation for
both sexual harassment and fraternization following (an
ADB) process and approval of the Commanding General.
As 
administrative separation by a properly convened (ADB).
He was represented at his (ADB) by both military and
civilian counsel.
The fact that Petitioner was not
able to litigate the alleged misconduct at a different
forum is irrelevant.
A CO may, at his discretion, use
one or more administrative or judicial measures to
dispose of alleged misconduct. In Petitioner's case,
upon reviewing the evidence, the CO decided that
administrative processing was preferable over other
measures including NJP or courts-martial.
the 
staff judge advocate for legal error and none were
found.
Noteworthy is the fact that even though the CO
was authorized to disapprove the  
to separate Petitioner, he choose (sic) to endorse and
support his separation.
commanding general concurred with the decision to
separate Petitioner and approved his discharge from the
U. S. Marine Corps due to his substantiated misconduct.
Whether separation was by reason of sexual harassment,
fraternization, or both, is irrelevant since either or
all are permissible bases to separate Petitioner from
the U. S. Marine Corps.

Following
(ADB's) decision, the results were reviewed by a

Ultimately, Petitioner's

(ADB's) recommendation

. 

. 

. Any procedural irregularities raised by Petitioner

. 
were corrected by NDRB when they upgraded his
characterization of service, however, returning

4

Petitioner to the U. S. Marine Corps would in effect,
condone his misconduct.
Most importantly, Petitioner
does not dispute that misconduct occurred nor does he
offer a defense to the substantiated misconduct. We
note that the President of the (ADB) felt compelled to
point out in his report his concerns that Petitioner
and his fellow staff noncommissioned officers "were in
fact lying" about events surrounding his misconduct.
f.

Concerning the issue of Petitioner's grade on discharge,

the Board agrees with the

Accordingly, the Board concludes

the advisory opinion recommends that the

the advisory opinion states that reduction to lance corporal
(LCPL; E-3) is only authorized when an individual is discharged
under other than honorable conditions.
Since he now has an
honorable discharge,
record be corrected to show that he was not reduced and was
discharged in the grade of SSGT.
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants partial
favorable action.
Concerning the issue of reinstatement,
HQMC advisory opinion that the action taken by the NDRB to
upgrade the discharge and change the reason for discharge was
more than sufficient relief for Petitioner, and discharge from
the Marine Corps was warranted.
that there is no merit to Petitioner's request for reinstatement,
and his discharge should not be set aside.
However, the Board also agrees with the conclusion in the
advisory opinion, that the NDRB action now makes the reduction to
LCPL inappropriate.
Therefore, the record should be corrected to
show that Petitioner was not reduced upon separation, but was
discharged in the grade of SSGT.
The Board further concludes that this
should be filed in Petitioner's naval
reviewers will understand that he was
SSGT.
RECOMMENDATION:
a.
corrected to show that he
was not reduced to LCPL but was discharged in the grade of SSGT.
b.

Report of Proceedings
record so that all future
discharged in the grade of

That the remainder of his requested be denied.
That this Report of Proceedings be filed in Petitioner's

That Petitioner's naval record be

C .

5

.

I

Acting Recorder

It is certified that a quorum was present at the Board's

naval record.
4.
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.

Pursuant to the delegation of authority set out in Section

ROBERT D. ZSALMAN
Recorder 
5.
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.