DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100

 

CRS
Docket No: 9343-08
4 March 2010

 

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

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 4 March 2010. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies. In addition, the Board considered the advisory
opinion furnished by Headquarters Marine Corps, Military Law
Branch, dated 29 May 2008, a copy of which is attached.

After careful and conscientious consideration of the entire
record, and notwithstanding the advisory opinion from
Headquarters Marine Corps, the Board found that the evidence
submitted was insufficient to establish the existence of probable
material error or injustice.

On 18 February 2005 you were notified that a Board of Inquiry
(BOT) would be convened to make a recommendation on your
retention in the Marine Corps. Your were informed that the
specific reasons for separation to be considered by the BOI were
substandard performance of duty, misconduct, and moral or
professional dereliction as evidenced by one of the following:

a. Failure to demonstrate acceptable qualities of
leadership required of an officer of your grade by
entering into an adulterous relationship with a
female Captain of Marines, the wife of another
Captain of Marines. ©

b. Commission of a military offense which could be
punished by confinement of 6 months or more and any
other misconduct which would require specific intent
for conviction, specifically conduct unbecoming an
officer and adultery as evidenced by your conviction
at general court-martial on 14 February 2005.

The notification stated further:

“2. The facts supporting the referral to the Board
are all facts outlined in the report of court-martial
conviction as recorded in reference c. The Board is
not limited to considering these facts alone and may
consider any additional facts concerning the reasons
for separation.”

On 22 March 2005 the BOI reviewed the alleged acts of misconduct,
to wit that you entered into an adulterous relationship with a
subordinate officer, whom you were the mentor and reporting
senior for, and who was married to another subordinate officer in
your unit; and you lied to the investigating officer, a
lieutenant colonel, denying the relationship. You were convicted
by general court-martial on 14 February 2005 of conduct
unbecoming an officer by making a false official statement,
having an unprofessional relationship with a junior female
officer, and adultery.

On the issue of retention, the BOI also considered two prior
incidents of misconduct: in 1999 you received nonjudicial
punishment and an adverse fitness report for an order violation
for misuse of your government computer by viewing pornography;

in 2002 you committed a similar order violation, and made a false
official statement by lying to the officer appointed to
investigate the circumstances of the violation.

During the course of the BOI, you admitted to all of the acts of
misconduct detailed in the notification letter, as well as the
two prior incidents of misconduct that were considered on the
issue of retention. In addition, you admitted that your actions
were wrong. <

The BOI found that a preponderance of the evidence proved that
you {1} failed to demonstrate acceptable qualities of leadership
required of an officer of your grade, and (2) committed
misconduct, as evidenced by commission of a military offense
which could be punished by confinement of 6 months or more. The
BOI recommended that you be separated with a characterization of
service of under honorable conditions.

On 22 April 2005 the Deputy Commandant for Manpower and Reserve
Affairs recommended that you be separated with a general

discharge. The Assistant Secretary of the Navy for Manpower and
Reserve Affairs approved the recommendation on 2 May 2005. You
were discharged under honorable conditions by reason of
unacceptable conduct on 13 May 2005, having completed 19 years,
11 months, and 27 days of active service. Due to administrative
error, the DD Form 214 you were issued on or about 13 May 2005,
as amended by a DD Form 215, shows that your service was
characterized as honorable, rather than under honorable
conditions.

The Board noted that you were processed for separation in
accordance with the provisions of SECNAVINST 1920.6B, rather than
1920.6C, change 1, as suggested in the advisory opinion.

The Board concluded that you were processed for separation solely
on the basis of your commission of the offenses of which you were
convicted by general court-martial. It was clear to the Board
that you would not have been considered for separation but for
that conviction. You were not processed for separation on the
basis of performance or conduct identified or reported to the
Show Cause Authority more than five years prior to the initiation
of separation processing. The record of your nonjudicial
punishment was not the basis of the separation processing, and
the consideration of that record by the BOI was proper. Had there
been evidence of preservice misconduct, the BOI would have been
permitted to consider that evidence for the purpose of deciding
whether to recommend separation or retention, although not on the
issue of characterization of service. The Board concluded that
the particularly egregious nature of the misconduct of which you
were convicted by general court-martial was more than sufficient
by itself to warrant your discharge under honorable conditions,
with resulting loss of potential retirement benefits.

The Board was not persuaded that you were denied due process by
the BOI, reviewing authorities and/or the Secretary of the Navy.
As indicated above, you were notified by the Show Cause Authority
-on 18 February 2005 that the BOI was not limited to considering
the circumstances of your general court-martial conviction, and
that it could consider other matters concerning the basis for
separation. You were on notice that the BOI and reviewing
authorities could consider your entire record, to include
evidence of prior acts of misconduct. In addition, you failed to
demonstrate that the length of time it took the Judge Advocate
General to conduct the review of your conviction by general
court-martial resulted in material error or injustice.

The available records do not establish that you completed twenty
years of active duty service as you allege. In this regard, the
Board found that entries in your official record indicate that
your active duty base date was 17 May 1985.

The Board carefully considered both the positive and negative
aspects of your service. It was not persuaded that the positive
aspects outweigh negative, or that it would be in the interest of
justice to grant your request for correction of your record to
show that you were honorably released from active duty and
transferred to the Retired List vice discharged from the Marine
Corps under honorable conditions.

In view of the foregoing, your application has been denied. The
names and votes of the members of the panel will be furnished
upon request.

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,

Wu)

Executive D

  

Enclosure