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NAVY | DRB | 2004 Marine | MD04-00895
Original file (MD04-00895.rtf) Auto-classification: Denied


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

ex-2nd LT, USMC
Docket No. MD04-00895

Applicant’s Request
The application for discharge review was received on 20040506. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041022. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Unacceptable Conduct, authority: SECNAVINST 1920.6B.
The NDRB did note an administrative error on the original DD Form 214. Block 25, Separation Authority, should read “ SECNAVINST 1920.6B” vice “MARCORSEPMAN PAR 6210.3. ” The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “The discharge I received was inequitable because it was based on one isolated incident in over ten years of active duty service with no other adverse actions or negative documentation in my service record. As a result of my discharge I have been unable to obtain employment, since employers are deterred by my discharge characterization, and I am unable to provide medical coverage for myself. I believe that it is unfair that one negative incident can outweigh more than ten years of honorable service.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              920818 - 020425  HON
         Inactive: USMCR(J)                920807 - 920817  COG

 Period of Service Under Review :
Date of Enlistment: 020426               Date of Discharge: 030811

 Length of Service (years, months, days):

         Active: 01 03 16
         Inactive: None

 Age at Entry: 28                          Years Contracted: 3

 Education Level: 12                        AFQT: 76
Highest Rank: 2Lt                          MOS: 9901

 Performance Evaluations : All Fitness Reports were available for review

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (w/2*), NMCAM, AFEM, NDSM (w/*), HSM, JMUA

Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ Unacceptable Conduct, authority: SECNAVINST 1920.6B.


 Chronological Listing of Significant Service Events :

020624:  CO, TBS issued Military Protective Order to Applicant to refrain from contact with 2Lt H_.

021008:  Psychiatrist diagnosed Applicant to possess an adjustment disorder with depressed mood. Recommended administrative separation.
030113:  Applicant requested resignation for cause. Applicant acknowledged that if his resignation in lieu of further processing for administrative separation is accepted, that he may receive a characterization of service of under other than honorable conditions and that he may be deprived of substantial rights. The Applicant acknowledged that his resignation is based upon his misconduct, specifically violation of UCMJ, Articles 92, 128, and 133.
030124:  NJP for violation of UCMJ, Article 92: On diverse occasions between July and November 2002, violated a Military Protective Order by wrongfully having contact with 2Lt H_, and by wrongfully entering the residence of 2Lt H_.
 Violation of UCMJ, Article 128: Assaulted 2Lt H_ on 021115.
Violation of UCMJ, Article 133 (4 specs).
Specification 1: On diverse occasions between July and November 2002, violated a Military Protective Order by wrongfully having contact with 2Lt H_, and by wrongfully entering the residence of 2Lt H_, which conduct is unbecoming of an officer and a gentleman.
Specification 2: Assaulted 2Lt H_ on 021115 by grabbing her arms, shoving her, and tearing open her pajama top, which conduct is unbecoming of an officer and a gentleman.
Specification 3: On 021115 wrongfully used reproachful words towards 2Lt H_ by calling her a “slut” and a “whore,” which conduct is unbecoming of an officer and a gentleman.
Specification 4: Was drunk and disorderly on 021115, which conduct is unbecoming of an officer and a gentleman.
Awarded punitive letter of reprimand. Not appealed.
030206:  CG, Training Command CG, MCCDC recommended discharge under other than honorable conditions and that Applicant’s resignation be approved. Also recommended that the Applicant’s reimbursement requirement for higher education not be waived. Applicant placed into pretrial confinement on 021122. Released from confinement on 030121 when a pretrial agreement was reached.

030312:  CG, MCCDC recommended discharge under other than honorable conditions and that Applicant’s resignation be approved. CG did not require Applicant to show cause.

030425:  CMC recommended approval of Applicant’s resignation for cause.

030715:  Assistant Secretary of the Navy (M&RA) approved Applicant’s resignation for cause due to unacceptable conduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030811 under other than honorable conditions due to unacceptable conduct (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 Applicant’s certificate of discharge from active duty documents that the Applicant completed over nine years of honorable service while enlisted. However, the Applicant’s service while commissioned as an officer is properly and equitably characterized as under other than honorable conditions. The Applicant’s service during the period under review constitutes a significant departure from that expected of a commissioned officer. The Applicant’s service was marred by award of nonjudicial punishment (NJP) for violating orders, assault upon a fellow officer, and conduct unbecoming an officer. The Applicant requested resignation for cause, and acknowledged that if his resignation in lieu of further processing for administrative separation was accepted, that he may receive a characterization of service of under other than honorable conditions and that he may be deprived of substantial rights. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
The Applicant’s discharge characterization accurately reflects his service to his country during the period under review. Normally, to permit relief, an inequity or impropriety must have existed during the period of service in question. No such inequity or impropriety is evident during the Applicant’s service. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for good conduct in civilian life, subsequent to leaving the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.









Pertinent Regulation/Law (at time of discharge)

 A. Secretary of the Navy Instruction 1920.6B of 13 December 1999 (Administrative Separation of Officers), enclosure (3), Policy Governing Involuntary Separation.

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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