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NAVY | DRB | 2004 Marine | MD04-01030
Original file (MD04-01030.rtf) Auto-classification: Denied


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

ex-SSGT, USMC
Docket No. MD04-01030

Applicant’s Request
The application for discharge review was received on 20040608. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge 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 20041222. 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 4 to 1 that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 .






PART I - APPLICANT’S ISSUES AND DOCUMENTATION


 Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Since my substantive and procedural due process right was denied to me and my counsel was not able to effectively represent me at the hearing. My peers in the command was pressure to not help or speak on my behalf due to their own careers might be in jeopady. Due to all this injustice I should not have been discharged in the first place. I would be retired this year had I got my due process. I lost everything due to this unjustice, ie., my house, job, and life. At least I still have my family. Please make it right. I have 3 Honorable discharges already. All of this happened after my 4 th enlistment. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Choice Point Services, Inc, not signed,(2 pages), dtd 1/20/2004
Copy of (3) state of Arkansas Licenses to sell insurance, (1) state of Arkansas Notary   Public, (1) state of Oklahoma Notary Public
Copy of Baptismal Certificate, dtd 13 May 1998
Copy of DD 215, dtd 981016
Copy of state of Oklahoma, Notary Public Commission, September 20, 2000 –        September 20, 2004
Copy of Preliminary Results of Substance Abuse Assessment, dtd 980320
Copy of Statement of Character, submitted by P_G_M_, dtd 3 June 1998
Copy of Statement of Character, submitted by J_W_A_, not dated
Copy of Statement of Character, submitted by S_D_R_, dtd 980608
Copy of Statement of Character, submitted by R_A_C_, dtd 17 June 1998
Copy of Results of Substance Abuse Evaluation, Alcohol Treatment Facility, Naval         Hospital Camp Lejeune, North Carolina, (3 pages), dtd 23 Mar 98
Copy of email from M_W_, not dated
Copy of Certificate of Attendance (July 2002), Cingular Wireless, dtd August 13, 2003
Copy of Certificate of Attendance (September 2002), Cingular Wireless, dtd October 8,    2003
Copy of Certificate of Service (Six Months), Cingular Wireless, dtd May 13, 2003
Copy of Certificate of Perfect Attendance (December 2002),Cingular Wireless, dtd         January 10, 2003
Copy of Certificate of Perfect Attendance (November 2002), Cingular Wireless, dtd        January 10, 2003
Copy of Certificate of Attendance (May 2003), Cingualr Wireless, dtd June 13, 2003
Copy of Email from M_S_, dtd December 14, 2002
Copy of (2) Emails from T_B_, dtd September 26, 2003
Copy of (2) Emails from B_B_. dtd August 13, 2003
Copy of Email from B_B_, dtd June 05, 2003
Copy of Letter from M_W_, not dated
Copy of Certificate of Good Conduct, dtd 870917
Copy of Certificate of Good Conduct, dtd 17 September 1990
Copy of Certificate of Good Conduct, dtd 17 September 1993
Copy of Certificate of Good Conduct, dtd 19 September 1996
Copy of Honorable Discharge Certificate, dtd 28 January 1988
Copy of Honorable Discharge Certificate, dtd 23 January 1992
Copy of Honorable Discharge Certificate, dtd 17 July 1997
Copy of Certificate of Reenlistment, dtd 29 January, 1988
Copy of Certifcate of Reenlistment, dtd 24 January, 1992
Copy of Certificate of Reenlistment, dtd 18 July, 1997
Copy of completion certificate for Staff Noncommissioned Officer Academy Career          Course, Camp Lejeune, dtd 11 June, 1997
Copy of Certificate of Appreciation (Atheltics Coach), dtd June 7, 1997
Copy of Certificate of Appreciation (Atheltics Head Coach), dtd June 1, 1996
Copy of Certificate of Appreciation (Operation Restore Hope), not dated
Copy of Certificate of Participation, Joint Task Force Panama, dtd 10 July 1988

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              840918 - 880128  HON
                                             880129 - 920122  HON
                                             920123 – 970717  HON
         Inactive: USMCR(J)                840317 - 840917  COG

 Period of Service Under Review :
Date of Enlistment: 970718               Date of Discharge: 980810

 Length of Service (years, months, days):

         Active: 01 00 23
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rank: SSGT                MOS: 0193

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

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, GCM (4), MCEM, NUC, MUC, MM (2), CC, NDSM (2), AFEM, SASM, JMUA, KLM, NAM, REB, PMB, CG CERT COMM, CERT OF PARTICIPATION

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

970718:  Applicant reenlisted this date for 4 years.
970821:  Child Abuse Case Review Committee, MCB Camp Lejeune, substantiates incident of child sexual abuse against SSgt S_ [Applicant]. Recommendation: that SSgt S_ [Applicant] receives sexual offenders treatment.

971202:  A Juvenile Petition was filed with the Onslow County District Court alleging abuse and neglect of M_ W_ and M_ W_ . The Department of Social Services filed this Petition because no one in the family had begun counseling or received any assessments and because the Department of Social Services had concerns about Mrs. S_ ability to protect the children.

971218:  Onslow County District Court adjudicated that the Applicant’s daughters were abused and neglected. The Court ordered that the Applicant “will have no contact” with his daughters, that he only be allowed at home two times a week when the daughters are not home and that he receive sexual offenders treatment.

980105:  Investigating Officer appointed to conduct an Article 32 Investigation in the case of Staff Sergeant M_ T_ S_ [Applicant], charged with the following:
         Charge I: Violation of the UCMJ, Article 128. Specification 1: In that Staff Sergeant M_ T_ S_, U.S. Marine Corps, Engineer School, Marine Corps Base, Camp Lejeune. North Carolina, did, on board Marine Corps Base, Camp Pend1eton, California on board Marne Corps Base, Camp Lejeune, North Carolina, and at or near the Jacksonville, North Carolina area between on or about June 1983 and on or about 10 June 1996, unlawfully strike M_ W_, a child under the age of 16 years, on divers occasions, on the buttocks, legs and back with a belt.
 Specification 2: In that Staff Sergeant M_ T_ S_, U.S. Marine Corps, Engineer School, Marine Corps Base, Camp Lejeune. North Carolina and at or near the Jacksonville, North Carolina area did, on board Marine Corps Base, Camp Lejeune, North Carolina between on or about 10 June 1996 and on or about July 1997, unlawfully strike M_ W_, on divers occasions on the buttocks, legs and back with a belt.
Charge II: Violation of the UCMJ, Article 134: Specification 1: In that Staff Sergeant M_ T_ S_, U.S. Marine Corps, Engineer School, Marine Corps Base, Camp Lejeune. North Carolina, did on divers occasions on board Marine Corps Base, Camp Pendleton, California, onboard Marine Corps Base, Camp Lejeune, North Carolina, and at or near the Jacksonville, North Carolina area between on or about June 1988 and on or about 10 June 1996, commit indecent acts upon the body of M_ W_, a female under 16 years of age not the wife of the said Staff Sergeant S_, by ………….., with intent to arouse and gratify the lust and sexual desires of the said Staff Sergeant S_.
Specification 2: In that Staff Sergeant M_ T_ S_, U.S. Marine Corps, Engineer School, Marine Corps Base, Camp Lejeune. North Carolina did on diverse occasions on board Marine Corps Base, Camp Lejeune, North Carolina, and at or near the Jacksonville, North Carolina area between on or about 10 June 1996 and on or about July 1997, commit indecent acts upon the body of M_ W_, not the wife of the said Staff Sergeant S_, by ………….. with intent to arouse and gratify the lust and sexual desires of the said Staff Sergeant S.
Specification 3: In that Staff Sergeant M_ T_ S_, U.S. Marine Corps, Engineer School, Marine Corps Base, Camp Lejeune. North Carolina did on divers occasions on board Marine Corps Base, Camp Pendleton, California, onboard Marine Corps Base, Camp Lejeune, North Carolina, and at or near the Jacksonville, North Carolina area between on or about December 1990 and on or about July 1997, commit indecent acts upon the body of M_ W_ , a female under 16 years of age, not the wife of the said Staff Sergeant S_, by ……………….., with intent to arouse and gratify the lust and sexual desires of the said Staff Sergeant S_.
Specification 4: In that Staff Sergeant M_ T_ S_, U.S. Marine Corps, Engineer School, Marine Corps Base, Camp Lejeune. North Carolina, did, on board Marine Corps Base, Camp Pendleton, California on board Marine Corps Base, Camp Lejeune, North Carolina, and at or near the Jacksonville, North Carolina area, between on or about December 1990 and on or about July 1997, orally communicate to M_ W_, a child under the age of 16 years, on diverse occasions, certain indecent language, to wit: "……………………." or words to that effect.
980204:  Investigating Officer from the Legal Services Support Section, 2 d FSSG, Camp Lejeune, North Carolina, submits Addendum to DD Form 457 Investigating Officer’s Report In the Case of United States v. Staff Sergeant M_T_S_ SSN, United States Marine Corps. Investigating Officer finds that there are reasonable grounds to believe that the accused committed the offenses contained in the charge sheet. The Investigating Officer recommends that the Applicant be offered a Separation in Lieu of Trail. Further, the Investigating Officer states: “Failing that, I recommend that the Charges against the accused [Applicant] be withdrawn and dismissed, and that the command begin administrative reduction and or discharge processing.”

980210:  Article 32 Investigation convened.
980310:  County of Onslow reports that Child Protective Service Investigators have substantiated sexual abuse of the Applicant’s daughters by the Applicant.

980326:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your inappropriate behavior of sexually abusing your stepdaughters.
980331:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980409:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation is based upon the Applicant’s sexual involvement with two minor stepdaughters.

980625:  Administrative Discharge Board convened.

980625:  Applicant waives the Administrative Discharge Board.

980723:  SJA review determined the case sufficient in law and fact.

980723:  GCMCA, Commanding General, Marine Corps Base, Camp Lejeune, North Carolina, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 980810 under other than honorable conditions for misconduct due to the commission of a serious offense (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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the applicant contends that his discharge was unjust “s ince my substantive and procedural due process rights were denied to me and my counsel was not able to effectively represent me at the hearing .” The Applicant waived his right to a Administrative Discharge Board after consulting with his counsel. On 9803031 the Applicant signed an acknowledgement of rights/notification letter informing him of the pending separation board and his rights at this board. The record contains no evidence of any wrongdoing by the government in the administrative discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. Although the Applicant did provide documentation from his employer and a criminal records check the Board did not feel that this was sufficient mitigate the misconduct that resulted in his characterization of discharge? Therefore, no relief will be granted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. Representation at a personal appearance hearing is recommended but not required.







Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001).

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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