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USMC | DRB | 2002_Marine | MD02-00603
Original file (MD02-00603.rtf) Auto-classification: Denied


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



ex-2NDLT, USMCR
Docket No. MD02-00603

Applicant’s Request
The application for discharge review, received 020402, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to (left blank). The Applicant requested a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030106. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change. The discharge shall remain: (GENERAL) UNDER HONORABLE CONDITIONS/UNSATISFACTORY PERFORMANCE, authority: SECNAVINST 1920.6B.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

 1. The discharge was improper because I was separated from my husband and in the process of getting a divorce when this single incident occurred (Doc 1).
2. I have had no other adverse action in my three years of service, and have since joined the Army NG.
3. My performance as a USMC officer and now currently as an U.S. Army NG officer have been exemplary (Doc 2/3).

 4. My achievements as a USMC officer and U.S. Army NG officer have been exemplary (Doc 2/3).
5. Attached to Doc 1 are character references from the Marines and civilians I work for and with while I was in the USMC.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (USMCR) (1999/08/13 to 2001/01/31)
 Copy of DD Form 214 (ARMY/ARNG) (2001/09/30 to 2002/04/15)
 Letter from Applicant's attorney regarding Separation for Cause (22 pages)
Fitness Reports from USMC (9 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              990606 - 990812  To Accept Commission
          Inactive: USMCR(WOC)     990331 - 990605  To Attend OCS
Period of Service Under Review :
Date of Commission: 990813               Date of Discharge: 010131

 Length of Service (years, months, days):
         Active: 01 05 19
          Inactive: None
Age at Entry: 27                          Years Contracted: 8

 Education Level: 16     

Highest Rank: 2ndLt

 Final Officer Performance Evaluation Averages : All officer performance reports were available to the Board for review.

 Military Decorations: None
Unit/Campaign/Service Awards: Rifle Expert Badge, Pistol Expert Badge

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority: SECNAVINST 1920.6B.
Chronological Listing of Significant Service Events :

000320:  Applicant notified of intention to conduct an Article 15 hearing, given advice and fully explained her rights.
000322:  Applicant, having consulted with counsel, elected not to demand trial by court-martial and certified willingness to accept punishment under Article 15, UCMJ.
000406:  NJP for violation of UCMJ, Article 133 (2 Specs): Conduct unbecoming an officer and a gentlemen.
 Specification 1- on or about 11 Feb 2000, commit adultery with Second Lieutenant S_ P. M_.
 Specification 2 - between 25 Nov 1999 and Jan 2000, shared a bedroom with Second Lieutenant J_ P. S_, a man not her husband. Violation of UCMJ, Article 134: Adultery.
 Specification - on or about 11 Feb 2000, wrongfully have sexual intercourse with Second Lieutenant S_ P. M_, a man not her husband.
         Award: Punitive Letter of Reprimand and restriction for 30 days.

000406:  Applicant elected not to appeal the imposition of NJP, but elected to submit a request for resignation in lieu of administrative separation processing.
000410:  Punitive Letter of Reprimand issued to Applicant.

 000410:  Applicant requested appeal of the non-judicial punishment.

 undated:         Commanding Officer reported to CMC Applicant's non-judicial punishment and recommended Applicant be required to show cause for retention through the notification procedures, Applicant's request for resignation in lieu of administrative separation processing be disapproved and that Applicant be separated with a general (under honorable conditions) characterization of service.
000501:  Appeal of non-judicial punishment denied.

000612:  Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of unsatisfactory performance of duties. The basis for discharge is a result of NJP.
000614:  Applicant advised of her rights and having elected to consult with counsel certified under UCMJ Article 27B, elected the right to tender a resignation in lieu of separation processing, to obtain copies of the documents used to support the basis for the separation and to submit a statement to the Secretary of the Navy.
000619:  Applicant requested resignation for cause in lieu of processing for administrative separation and requested an Honorable characterization of service.
000629:  Commanding Officer, Basic School, Marine Corps Combat Development Command, Quantico, VA, recommended Applicant be administratively separated for cause, specifically - failure to demonstrate the acceptable qualities of leadership required of an officer in her grade, and for misconduct. Recommend resignation be accepted with a characterization of service as general (under honorable conditions).
000919:  Applicant requested cancellation of resignation request.

 000928:  Commander, Education Command, Marine Corps Combat Development Command, recommended disapproval of Applicant's request for withdrawal of resignation request.
001204:  CMC recommended to the Assistant Secretary of the Navy that Applicant's withdrawal of resignation in lieu of administrative processing for cause be accepted, that she be separated with a characterization of service under honorable conditions (general) due to misconduct - unsatisfactory performance of duty.
010109:  Assistant Secretary of the Navy approved Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010131 under honorable conditions (general) due to unsatisfactory performance for conduct unbecoming of an officer. (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).
Issue 1. The fact the Applicant was separated but not divorced at the time of her misconduct does not mitigate her actions sufficiently to warrant an upgrade to her discharge. Relief denied.
Issues 2-5. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on one occasion. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Marines serve honorably and well and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. In the Applicant’s case, her Commanding Officer noted that she conducted herself in a manner that had no regard for the consequences of her actions to those around her. The documentation provided was not sufficient to demonstrate an inequity in the characterization of service she received. No other narrative reason other than that currently listed on her DD Form 214 more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief is therefore denied.
Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of work related achievements, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant did not provide sufficient documentation to warrant an upgrade to her discharge. Relief denied.

She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is permitted.

Pertinent Regulation/Law (at time of discharge)
A. Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 13 Dec 1999 until Present 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 Mar 97.
B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.
D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:
                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023      

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