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


FOR OFFICIAL USE ONLY


ex-Capt, USMCR
Docket No. MD05-00419

Applicant’s Request

The application for discharge review was received on 20050104. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102. 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 by reason of unacceptable conduct.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or from an attached document/letter to the Board:

“My discharge was both improper and unjust because:

1. During the Board of Inquiry (BOI) procedures on 30 JAN 02, which recommended my dismissal from service and the Other Than Honorable (OTH) characterization, the only witness called by the government, Sgt C_ D. T_, perjured himself. When questioned by a member of the Board, LtCol M_ (a member of the SMCR whose civilian occupation is a divorce attorney in North Carolina), who reminded him he was under oath, about whether he had filed a written response to Carteret County, North Carolina Court after receiving his divorce papers, Sgt T_ answered “No.” When in fact, Sgt T_ replied to the Clerk of Court on 17 DEC 04 attesting to receiving a copy of the divorce papers, and wanting a divorce. Sgt T_’s false official statement was overlooked by the Board, and Sgt T_ received no consequence for his perjury. Since Sgt T_ was the only witness produced by the government, and since a member of the Board was an attorney specializing in divorce in North Carolina, the Board should have dismissed the testimony of Sgt T_ on grounds of credibility. This would have left the government with no witness.

2. Prior to the start of the Board of Inquiry procedures on 30 Jan 02, the (BOI) members dismissed any notion for retention when they dismissed the central argument in my defense, “An officer who had problems in the past, who overcame a downfall and continued to serve our nation in a respectful and dignified manner.” They did this by weighing in favor of the government’s request to exclude a slide during my unsworn testimony which showed General R_, who was at the time the CINC of USEURCOM. General R_ was my example of an officer who was reprimanded earlier in his career for an adulterous relationship, who continued to serve and reach a high level position where he commanded Marines. The Recorder further commented during the BOI, that we are the Marine Corps, not the Air Force. The Recorder’s comments regarding the Marine Corps’ perceived elevated moral status makes my discharge unjust because characterization of discharge is not service specific, and an OTH with the stigma and limitations it carries as a civilian are irregardless of the branch of service that recommends it.

3. The President of the BOI, Colonel H_, remarked he knew of a “number of officers that have been involved with junior ranking Marines which led to them being disciplined,” but he “never recalled one of those instances being brought before a board of inquiry.” Colonel H_ was also the Commanding General’s G-l Officer. By virtue of his position as BGen F_’s Personnel Officer, he was aware of my situation prior to the convening of the BOI, both of my attempts to resign prior to the BOI, and BGen F_’s stated feelings towards me. He should not have served on the Board, as it put hit him in a conflict of interest situation. I made my feeling on this known to my government appointed attorney, Major H_, prior to the BOI, but he did not bring up my reservations to the Board.

4. The investigating officer (IO) on the preliminary inquiry into my relationship with S_ S_ was Major M_. Major M_ was also the investigating officer on the preliminary inquiry into my relationship with C_ S_. These two preliminary inquiries were the basis of my being brought before a BOI. After her first inquiry, Major M_ had formed a strong negative opinion of me. When I found out that she would be the IO on the preliminary inquiry into my relationship with S_ S_, I immediately challenged it with her supervisor, LtCol T_, on grounds that she had already formed a biased opinion regarding me. My objections were dismissed.

5. My current characterization of discharge is extremely unjust as it does not allow me to serve my country as an active duty member, reservist, or national guardsman. Even though I have made a smooth transition to civilian life and enjoy the time I spend with my wife S_ and our family, a good job, and a nice home; I have been trained since youth to serve in the military. I grew up an Army child. I attended the Naval Academy Prep School and graduated from the Virginia Military Institute. I spent the first ten years of my adult working life being an outstanding active duty officer until my personal relationships became an issue. And even through the difficulties, I carried out my duties in an exceptional manner. My oldest daughter, B_, recently joined the local JROTC unit, and it made me realize how much I miss serving. This, coupled with the number of friends and fellow alumni I know serving in Iraq and Afghanistan, makes me want to join the fight. I am still in good physical shape, and the knowledge and experiences I have gained as a civilian manager in both a distribution and manufacturing setting only makes me a better logistician. I hope an upgrade in characterization of discharge will allow me the opportunity to renew my relationship with the US Armed Forces. ”

Representative submitted no issues.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Applicant’s Letter to NDRB, dtd June 28, 2005
Applicant’s rebuttal to the Board of Inquiry, dtd February 25, 2002 (9 pages)
Documents concerning J_ A. S_ and C_ A. S_ (7 pages)
Letter from Applicant to Staff Judge Advocate, dtd February 15, 2002
Letter from Commandant of the Marine Corps to Assistant Secretary of the Navy (M&RA), dtd May 15, 2002 (3 pages)
Letter to counsel for respondent, dtd February 8, 2002
Transcript of the Board of Inquiry, dtd (66 pages)
Investigation leading to the Board of Inquiry, dtd June 6, 2001 (6 pages)
Letter to Major K_ M. M_ directing to conduct a preliminary inquiry, dtd April 23, 2001
Preliminary inquiry and command investigation, dtd May 31, 2000 (4 pages)
Preliminary inquiry and command investigation, dtd June 5, 2000 (3 pages)
Preliminary inquiry and command investigation, dtd May 19, 2000 (8 pages)
Applicant’s fitness reports (43 pages)
Letter to Applicant from Commandant of the Marine Corps, dtd October 16, 2000
Twenty-fifth Marine Corps Marathon certificate
Certificate of Navy and Marine Corps Commendation Medal, dtd June 15, 1999
Summary of Action, undtd (5 pages)
Certificate of completion for warfighting skills distance education program, dtd April 23, 1999
Certificate of appreciation, dtd December 22, 1998
Thank you letter to Applicant, dtd December 28, 1998
Certificate of appointment as contracting officer for the United States of America, dtd August 18, 1997
Certificate of enrollment in MDSS II, dtd May 9, 1997
Certificate of achievement, dtd October 9, 1996
Certificate of completion, dtd February 29, 1996
Article, October 1995
Certificate of award of the Joint Service Commendation Medal, dtd November 3, 1995 (2 pages)
Operation Sea Signal flyers (7 pages)
Certificate of appreciation, undtd
Letter from the Commanding General, 2d Marine Division, dtd August 8, 1994
Newspaper article
Certificate for superior physical performance, dtd July 8, 1989
Certificate of accomplishment, undtd
Diploma, dtd June 12, 1987

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: None
         Active: USNR     19870608 - 19880317      HON
         USMCR   19890201 - 19920514      HON

Period of Service Under Review :

Date of Commission: 19920515             Date of Discharge: 20020708

Length of Service (years, months, days):

Active: 05 11 24
         Inactive: 04 01 18

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 22

Years Contracted: Career Designation with Active Reserve (AR) Program

Education Level: 16     

Highest Grade: Capt                                 MOS: 0402

Final Officer’s Performance Evaluation Averages (number of marks): Officer’s performance reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214): Navy and Marine Corps Commendation Medal, Joint Service Commendation Medal, National Defense Service Medal (02), Humanitarian Service Medal, Sea Service Deployment Ribbon, Joint Meritorious Unit Award, Letter of Appreciation, Certificate of Appreciation

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

UNDER OTHER THAN HONORABLE CONDITIONS/UNACCEPTABLE CONDUCT, authority: MARCORSEPMAN Par. 4102.

Chronological Listing of Significant Service Events :

920515:  Applicant accepted appointment as a 2nd Lieutenant in the USMCR.

920816:  Applicant ordered to active duty for further assignment to The Basic School for duty under instruction in Basic Course 5-92 for a period in excess of 26 weeks.

960715:  Applicant ordered to active duty with the Marine Corps Active Reserve (AR) Program for a period of 36 months.

980116:  Applicant selected for career designation with the AR program.

980701:  Applicant accepted career designation with the AR program.

000531:  Investigating Officer’s recommendations from Preliminary Inquiry and Command Investigation into the facts and circumstances surrounding the incident and suspected misconduct: a. There is insufficient evidence to warrant any disciplinary action at this time on the charge of Adultery or Fraternization. b. Applicant be formally counseled via page 11 entry in his OQR on proper behavior, comportment, and appearance of an officer of Marines, and that his behavior, and perceptions of his behavior by others, right or wrong, play a major role in the execution of his duties as an officer. c. Applicant be formally counseled via page 11 entry in his OQR on fraternization, its definition, and how perceptions of fraternization can hinder an officer in the execution of his duties and have a negative impact on the good order and discipline of a unit. d. Applicant be given a non-punitive letter of reprimand. e. The appropriate comments and marks for “judgment” be placed in the Applicant’s next fitness report. f. Applicant be ordered to attend marital counseling. g. That if in the future, any new or additional evidence were to surface concerning this incident, that further investigation and evaluation would be justified to see if any added disciplinary or administrative action were warranted against any or all parties. [Note: Extracted from documents submitted by Applicant.]

010605:  Investigating Officer’s recommendations from Preliminary Inquiry into the allegations of adultery, fraternization and conduct unbecoming an officer: a. That the Applicant receive nonjudicial punishment under Article 133, UCMJ for Conduct Unbecoming an Officer. Allegations of fraternization and adultery would be difficult to prove. b. That the Applicant’s orders to AWS be cancelled. c. That the Applicant be permitted to resign his commission, if tendered. [Note: Extracted from documents submitted by Applicant.]

010706:  Commander, Marine Corps Air Bases, Eastern Area, NJP for violation of UCMJ, Article 133:
         Specification: Conduct unbecoming.
         Award: Forfeiture of $500 per month for 1 month and letter of reprimand.
         [Note: Extracted from Commander, Marine Corps Air Bases, Eastern Area letter dated 23 Jul 2001.]

010723:  Commander, Marine Corps Air Bases, Eastern Area, forwarded Report of Nonjudicial Punishment to Commandant of the Marine Corps (JAM) via Commander, U.S. Marine Corps Forces, Atlantic, to assist in making the decision whether to process the Applicant for administrative separation.

010724:  Applicant tendered an unqualified resignation of commission in the U.S. Marine Corps Reserve in lieu of further administrative processing for cause.

011104:  Deputy Commandant for Manpower and Reserve Affairs, in capacity as the Show Cause Authority for the Marine Corps, denied the Applicant’s request for resignation. Applicant is notified that his misconduct constituted a significant departure from that required of an officer of the Naval Service and his case is being sent to the Alternate Show Cause Authority for show cause determination.

011128:  Commander, U.S. Marine Forces, Atlantic, in his capacity as an Alternate Show Cause Authority, referred the Applicant’s case to Board of Inquiry (BOI) for a show cause determination.

011204:  Applicant submitted a qualified resignation request in lieu of further administrative processing. [Note: Extracted from Commandant of the Marine Corps letter dated 13 May 2002.]

020219:  Board of Inquiry Report: The BOI, by a preponderance of the evidence and unanimous vote, found: 1. The Applicant has demonstrated substandard performance of duty by failure to demonstrate acceptable qualities of leadership required by an officer in the member’s grade. 2. The Applicant has demonstrated misconduct or moral or professional dereliction by commission of a military or civilian offense which could be punished by confinement of six months or more or any other misconduct which would require specific intent for conviction, specifically violation of Article 133, conduct unbecoming of an officer and a gentlemen. By unanimous vote, the BOI recommended that that Applicant be separated from the naval service for the reasons listed above and the service be characterized as other than honorable.

020211:  Applicant’s request denied. [Extracted from Commandant of the Marine Corps letter dated 13 May 2002.]

020215:  Applicant’s counsel reviewed the BOI Report and made written corrections to the report.

020225:  Applicant’s rebuttal to BOI Report contained in service records.

020226:  Applicant’s counsel’s rebuttal to BOI Report contained in service records.

020306:  SJA reviewed BOI proceedings and determined to be sufficient in law and fact.

020306:  Commander, Marine Corps Air Bases, Eastern Area, forwarded the BOI Report to Secretary of the Navy recommending approval via Commander, Marine Corps Bases, Atlantic, and Commandant of the Marine Corps (JAM).

020408:  Commander, Marine Corps Bases, Atlantic, forwarded the BOI report to the Secretary of the Navy concurring with findings and recommendations via Commandant of the Marine Corps (JAM).

020513:  Deputy Commandant for Manpower and Reserve Affairs recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions. The separation code will be GNC1 (involuntary discharge – unacceptable conduct – board).

020603:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of unacceptable conduct.

020624:  Commanding Officer, Reserve Support Unit, Marine Corps Air Bases, Eastern Area informed Applicant that effective 2400 on 08 Jul 2002 he would be discharged from the U.S. Marine Corps by reason of unacceptable conduct, separation authority: MARCORSEPMAN, paragraph 4102.

020624:  Applicant to leave awaiting separation.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020708 by reason of unacceptable conduct (A) with a service characterization of under other than honorable conditions. 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 (B and C).

The Applicant contends that his discharge was improper because the Board of Inquiry (BOI), which recommended his discharge, considered false testimony from the sole government witness. According to regulations, BOIs are not courts-martial, and the rules of evidence do not apply. Oral or written matters not admissible in a court of law may be accepted by BOIs. Such oral or written matters may be subject to reasonable restrictions as to authenticity, relevance, materiality, and competency as determined by the BOI. The Applicant’s contention suggests that the BOI’s determination was solely based on the testimony one witness. To the contrary, the BOI’s final decision was reached by majority vote on a preponderance of the evidence. The NDRB therefore concluded that there was no impropriety. Relief on this basis is denied.

The Applicant also contends that his discharge was improper because the BOI excluded a page from his documents. The Applicant feels that this page was central to his defense. Again, oral or written matters presented may be subject to reasonable restrictions as to authenticity, relevance, materiality, and competency as determined by the BOI. The transcript of the BOI shows that the presiding officer initially ruled that the page would remain in the Applicant’s exhibit. Upon returning from a recess and having had an opportunity to review the materials in greater detail, the presiding officer ruled that the page was irrelevant. While it would remain a part of the Applicant’s exhibit, it would not be considered during deliberation. After reviewing the appropriate regulations, the NDRB found that the conduct of the BOI members regarding this ruling was proper. Relief on this basis is denied.

The Applicant contends that his discharge was improper because the senior member of the BOI was assigned as the Commanding General’s G-1. According to regulations, the BOI convening authority is not limited to officers under his or her command in selecting qualified officers to sit on a BOI. Put another way, the convening authority is permitted to select qualified officers from within the chain of command. However, officers with personal knowledge pertaining to the particular case shall not be appointed to the BOI considering the case. The transcript of the BOI shows that the Applicant’s counsel questioned the members about their relationship with the Commanding General and prior knowledge of the case. Based on their responses, the Applicant’s counsel chose not to challenge the membership. The NDRB determined that there was no impropriety in the membership of the BOI. Relief on this basis is denied.

The Applicant further contends that his discharge was improper because the same officer conducted both preliminary inquiries, which form the basis for the BOI. While the NDRB could not find any regulation, which places such limits on the appointment of investigating officers, the records contradict the Applicant’s contention. The records show:
•         Preliminary Inquiry and Command Investigation into the Facts and Circumstances Surrounding the Incident and Suspected Misconduct of Captain W_ J. S_ (Applicant) dated 20000531 was conducted by Captain M_ R. R_, USMC and
•         Preliminary Inquiry into Allegations of Adultery, Fraternization and Conduct Unbecoming an Officer in the case of Captain W_ J. S_ (Applicant) dated 20010105 was conducted by Major K_ M. M_, USMC.
Two different officers conducted the inquiries, which led to show cause. The NDRB noted that the Applicant did not provide any credible and substantial evidence to show that the either of these Investigating Officers maintained a bias that was prejudicial to his case. The NDRB found no impropriety. Relief on this basis is denied.

The Applicant claims that he had been an outstanding officer until his personal relationships became an issue. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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. There is irrefutable evidence that the Applicant’s conduct during his time in the Marine Corps was not honorable. Indeed, the Applicant received nonjudicial punishment on 20010706 for violation of UCMJ Article 133 Conduct unbecoming officer. The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for a characterization under honorable conditions. An upgrade to Honorable or General (Under Honorable Conditions) would be inappropriate, and is therefore denied.

The Applicant desires a characterization of service upgrade to Honorable or General (Under Honorable Conditions) in order to reenter military service. The Board recognizes the Applicant’s motivation to reenter military service; however, the Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter. Since this issue does not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

The following is provided for the Applicant’s edification. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question, but the Board found no such impropriety or inequity. While 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 Marine Corps, the Board is authorized to consider post-service factors in the recharacterization of a discharge to the extent 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 continuing educational pursuits, verifiable employment records, documented community service, and certification of non-involvement with civil authorities are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Applicant did not provided any post-service documentation for consideration. Relief on this basis is not warranted.

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. 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. 14 Mar 97.

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

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

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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