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


FOR OFFICIAL USE ONLY


ex-SSgt, USMC
Docket No. MD05-00924

Applicant’s Request

The application for discharge review was received on 20050426. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “CONVIENCE OF THE GOVT.” The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant designated the American Legion as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112. 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 and the reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.

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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:

“Dear Navy Discharge Review Board:

The following issues are the reasons I believe my discharge should be upgraded to Honorable. If you disagree, please explain in detail why you disagree. The presumption of regularity that might normally permit you to assume that the service acted-correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

A. As documented in my service record I had not received any page 11’s or derogatory reviews until the incident in question.

B. I have received several awards and decorations.

C. As noted by the letters of recommendation I have included both for my case and for the entrance of the National Guard, I was and still is a committed Marine.

D. My record of promotion showed I was a very good service member. I would like to draw attention to my accelerated promotion request during the time of the so call letter (960301 - 970228).

E. Because of the recommendation of the board a one year suspension and because I had only one year left on my contract, I believe it was unfair to release me. I had completed the first part of my counseling and my family was waiting on the second phase and therefore we received no counseling. Until now I do not know why I was not recommended for the suspension of one year to not only complete my year left on contract but a year of family and individual counseling.

F. As stated previously I have no page 11’s or NJPs or record of court-martials convictions.

G. I believe that I suffered religious discrimination because we said that we wanted Christian counseling. My family and I was receiving that counseling from my Pastor and from the Chaplain on base.

H. My command abuse its authority when it decided to discharge me and decided to give me a General discharge. It was well noted that the command did not talk to my Officer in Charge because he would openly disagree with the CO and it was also noted that the CO did not understand why would not get angry in a meeting with him.

I. My lawyer suggested that my case be move to the states (1) Because of the severity of the allegations (2) If kept I could get full counseling in the states (3) Because I could get better affordable representation in the states but the CO said he would not send me but he tried to send my family to the states.

J. My discharge was improper because the command did not follow the discharge regulations.

1. According the the Marine Corps Separation and Retirement Manual P1900. para 6319 because there were more than one reason for my discharge I should have received a determination of each specific reason. I did not received that as documented by my record of proceedings. Until now I do not know why I was separated or what prepondence of the evidence warranted my separation.

2..I was not given a complete statement of the facts and circumstances, accompanied by appropriate supporting documents, upon which the recommendation was based, as mention in Para 6321 of the ref.

3. Upon sending the recommendation of separation to the the separating authority there were no supporting statements from my SNCO or officers in my chain of command that are typically very helpful to the separation authority in deciding a Marines case. (para 6505 .2c of the ref)

4. The SJA that reviewed my case was one-sided in his recommendation. Because of the uniqueness of Marine Corps Base, Okinawa, Japan. The recorder worked for the SJA that reviewed my case and because of that I don’t believe he would make a good bias recommendation on the correctness of the procedures by the board.

a. The point of evidence as stated in my letter of deficancy is someting I want to bring a point to. By the recorder owns adminssion this procedure for getting the evidence was wrong. As stated on page 148, the rcdr second statement “Okay. We deede to, again, put that on the record, if there was any questions or anything that you needed, we needed to come back in and then discuss the issue first.” His own admission on the preceeding statement makes it clear that para 6316.4 should have been followed.

5. I was never given the chance for counseling and rehabilitation efforts before I was separated. Understanding that this is not a requirement for what I was discharge for but again I thought the Marine Corps would take care of it’s own and at least give me a chance within the year of suspension to get some counseling and rehabilitation.

6. Other noted discrepancies are included in the letter of deficiency date 19 Mar 03.

7. NCIS did not accurately submit testimony most notably was my wife’s interview. My wife was interviewed for 3 hours and everything that was said was not accurately submitted by the NCIS. She was portrayed as a liar (which she was called) and a person covering for me. My wife when asked about a letter said “I can’t recall no letter at this time”, not “There was no letter” as NCIS portrayed.

8. The board considered inaccurate evidence as it related to my earlier case with FAP. As you will notice there is no evidence that I knew that the previous allegations were founded. I provided evidence to the board and to FAP where the State of Virgina said the allegations were unfounded. The State investigated because the base asked them to and Quantico’s FAP noted that they called for the state investigation and received it.

10. I nor my wife was allowed to appealed the FAP case previously not this time.

[signed]
E_ C. R_(Applicant) ”

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
Fourteen pages from administrative separation board (pages 148-161)
Letter of Deficiency, dated March 19, 2003 (3 pages)
SECNAVINST 1752.3A CH-1 pages 4-7
Seventeen pages from Applicant’s service record
CO, Headquarters and Services Battalion, First Endorsement on Senior Member Admin        Discharge Board letter, dtd March 21, 2003 (2 pages)
SJA Memorandum, dtd March 27, 2003 (7 pages)
CG, MCB Camp Butler, Second Endorsement Senior Member Admin Discharge Board      letter, dtd March 28, 2003 (2 pages)
Character Reference ltr from D_D_, dtd June 11, 2003
Recommendation Letter for Enlistment from S_S_, dtd May 6, 2003 (2 pages)
Letter of Recommendation from D_D_, dtd June 6, 2003
Letter of Recommendation from R.G.M_, dtd June 16, 2003 (2 pages)
Marine Corps Separation and Retirement Manual 6316, 6318, 6319 and 6320
Character Reference ltr from D_ C_, dtd September 9, 2005
Character Reference ltr from R_ G. M_, dtd July 14, 2005
Character Reference ltr from D_ A_, dtd November 29, 2004
Character Reference ltr from D.R. H_, dtd February 28, 2003
Letter of Reference from D_C.M_, dtd March 1, 2003, (2 pages, not signed)
Letter of Character Recommendation, dtd February 27, 2003 (not signed)
Character Reference from S_S_, dtd February 27, 2003 (2 pages)
Letter from G. E_ P_, dtd February 28, 2003 (2 pages)
Character Recommendation from R_D.M_, dtd February 28, 2003 (2 pages)
Character Reference from J_P.R_, dtd February 28, 2003
Character Reference from E.S. B_, dtd February 28, 2003 (2 pages)
Character reference from Applicant’s daughter, undtd

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PART II - SUMMARY OF SERVICE

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

         Inactive: USMCR (DEP)    19870403 - 19870422      COG
         Active:  USMC     19870423 - 19900516      HON
                  USMC     19900517 - 19940105      HON
                  USMC     19940106 - 19971019      HON
                  USMC     19971020 - 20000502      HON

Period of Service Under Review :

Date of Enlistment: 20000503             Date of Discharge: 20030531

Length of Service (years, months, days):

Active: 03 00 29
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 33

Years Contracted: 4

Education Level: 13                                 AFQT: 65

Highest Rank: SSgt                                  MOS: 0193/0151/9916/9982

Final Enlisted Performance Evaluation Averages (number of marks): Enlisted 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): Marine Corps Good Conduct (5); Military Outstanding Volunteer Service Medal; Navy and Marine Corps Achievement Medal; Sea Service Deployment Ribbon (5); National Defense Service Medal (2); Meritorious Unit Commendation (2); Navy Unit Commendation; Certificate of Commendation (3); Certificate of Appreciation; Meritorious Mast; Letter of Appreciation; Expert Rifle Badge; Sharpshooter Pistol Badge

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events :

000503:  Reenlisted this date for a term of 4 years.

021127:  Commanding General, Marine Corps Base, Camp Smedley Butler, letter to Commanding Officer, Headquarters and Services Battalion. Subject is Family Advocacy Case Review Committee Determination and Recommendation(s) pertaining to the Applicant. Comments: “ The CRC determined the incident of sexual child abuse to be substantiated, father to child, with SSgt R_ (Applicant) named as the offender.” Additional comments: “The CRC determined the incident of physical child abuse to be substantiated, father to child, with SSgt R_ (Applicant) as the offender.”

021227:  Counseling: Advised of deficiencies in performance and conduct (Continued involvement in substantiated child maltreatment cases. On 23 October 2002 Applicant was referred to the Family Advocacy Program due to an allegation of ongoing sexual child abuse. Case was presented to the Case Review Committee (CRC) on 19 November 2002. The CRC substantiated both a matrix Level III physical child abuse incident (father to child) and a matrix level V sexual child abuse incident (father to daughter). This was the second substantiated abuse case for the family, of which, the first is a physical child abuse case dated 13 June 1994. Applicant’s exploitation of a child under the age of 17 and continued abuse up to the child reaching age 19 is reprehensible, unprofessional, immoral, and contrary to values and morals expected of a staff noncommissioned officer. This behavior will not be tolerated and is contrary to our Corps Values. Accordingly Applicant’s ability to perform duties as a United States Marine, has been substantially undermined.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge.

021230:  Applicant notified of intended recommendation for discharge with a characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense, for acts of sexual perversion, assault, obstruction of justice, indecent acts or liberties with a child, indecent language and child abuse. The factual basis for this recommendation was conduct prejudicial to good order and discipline, including sexual perversion, assault, obstruction of justice, indecent acts or liberties with a child, indecent language and child abuse.

021230:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

030305:  An Administrative Discharge Board, based upon a preponderance of the evidence and by majority vote, found that the Applicant had committed misconduct due to a commission of a serious offense, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions). By a majority vote the Board recommended that the separation be suspended for 12 months.

030321:  Commanding Officer, Headquarters and Service Battalion, Marine Corps Base, Camp Smedley D. Butlter recommended Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense. Commanding Officer’s comments: “2. I concur with the findings of the administrative discharge board; however, I do not concur with the recommendation that Staff Sergeant R_(Applicant)’s separation be suspended for a period of 12 months. Accordingly, I recommend that Staff Sergeant R_(Applicant) be separated from the U.S. Marine Corps, by reason of misconduct due to a commission of a serious offense, per paragraph 6210.6, of the reference. The characterization of service should be general (under honorable conditions).
3. In enclosure (2), Counsel for the Respondent, Captain M_, identifies what he believes to be defective procedures in the convening of subject administrative discharge board. The following information is submitted supporting the composition of subject board:
a. In paragraph 2a of enclosure (2), Captain M_ states that according to SECNAVINST l752.3A, “Commanding Officers who convene administrative discharge proceedings in child sexual abuse cases shall, in all cases, assign a judge advocate as the recorder unless there is compelling reason not to do so.” In Government Exhibit #1 to enclosure (1), I convened an administrative discharge board on 8 January 2003, to hear the administrative discharge board concerning Staff Sergeant R_ (Applicant)’s case. In paragraph 3 to Government Exhibit #1, I appointed Captain J_ W. W_, a judge advocate, to act as Recorder for the government and in paragraph 4, I appointed Chief Warrant Officer 2 R_ M. H_ to act as Assistant Recorder for the government. On 13 January 2003, I modified the subject appointing order identifying the composition of the board. On 25 February 2003, I was made aware by the Assistant Recorder of a possible scheduling conflict with Captain W_’s primary duties as the Marine Corps Base Foreign Criminal Jurisdiction Officer and the possibility that Captain W_ may be called as a witness to discuss the Case Review Committee process. Accordingly, after reviewing the procedural guidance contained in the reference, I found it practical to go forward with the Assistant Recorder, Chief Warrant Officer 2 H_ as the Recorder. Moreover, on 25 February 2003, I caused a Legal Advisor to be appointed to the board to rule on all matters of procedure, evidence and challenges before the board. Accordingly, I do not concur with Counsel for the Respondent that this board was improperly convened.
4. In addition, I recommend that the family be granted continued logistical support pending the completion of the current school year.
5. This case is forwarded to the Separation Authority for final review, decision and action.”

030327:  SJA review determined the case sufficient in law and fact.

030328:  GCMCA, Commanding General, Marine Corps Base, Camp Smedley D. Butler directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030531 by reason of misconduct due to the commission of a serious offense (A and B) with a service characterization of general (under 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under 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.
The basis for the Commanding Officer’s recommendation for the Applicant’s administrative separation was violation of UCMJ Articles 128 (assault), 134 (indecent acts or liberties with a child, and 134 (obstructing justice). Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. 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 states that prior to the incident(s), he had no page 11’s, no derogatory reviews, and had received several awards and decorations. Despite a service member’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. Violations of UCMJ Articles 128 (assault), 134 (indecent acts or liberties with a child, and 134 (obstructing justice) are considered serious offenses. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason Separation would be inappropriate. Relief is not warranted.

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 alleges :
-        that the Command abused its authority because the Command did not talk to his Officer in charge because he would openly disagree with the Commanding Officer
-        that his Command did not follow the discharge regulations
-        that he should have received a determination of each specific reason for his discharge
-        that he was not provided with a “complete statement of facts and circumstances, accompanied by appropriate supporting documents, upon which the recommendation was based”
-        that the SJA that reviewed his case was “one-sided in his recommendation”
The record contains no evidence of any wrongdoing by the government or anyone involved in the discharge process. The Applicant was notified of the recommendation for his administrative separation and elected to appear before a Administrative Separation Board. The Administrative Separation Board, based upon a preponderance of the evidence and by majority vote, found that the Applicant had committed misconduct due to a commission of a serious offense, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions). 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 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 01 September 2001 until Present).

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 128 (assault), and 134 (indecent act, liberties with a child).

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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