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USMC | DRB | 2006_Marine | MD0600225
Original file (MD0600225.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-Capt, USMC
Docket No. MD06-00225

Applicant’s Request
The application for discharge review was received on 20051114 . 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 “ Resignation . ” The Applicant requests 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 20061012 . 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 reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of (Resignation) Unacceptable Conduct .


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application and from an attached document/letter to the Board:
“ 1. My discharge was inequitable because it was based on one isolated incident during my entire service career. See document 1.

2. The incident occurred in a different period of service, then my discharge. From 19970516 to 20020108, I had a reserve commission. The incident that occurred happened on 20010901 while I served as a reserve officer. Following my incident I enrolled in alcohol treatment at Ft Knox on 20 Sep 01. On 20020108, I was authorized to augment to active and to receive a regular commission. During the period from 20020108 to 20040203, my performance and conduct were satisfactory and incident free. I feel that this period of service warrants an Honorable discharge. ”

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

 “ 1. I am formally requesting that my discharge be upgraded from General Under Honorable to Honorable and that the reason for discharge be changed to RESIGNATION. I feel that my discharge was inequitable because it was based on one isolated incident during my entire service career. I was open and up front with both my commanding officers in RS Louisville regarding all facts and circumstances of the incident resulting in my discharge. After being allowed to accept augmentation and serve an additional 21 months after the incident, and investigation was initiated just prior to me receiving PCS orders.

2. The incident that occurred on 1 Sep 01 was the one and only time that I have broken the law. The reason this incident occurred was due to my uncontrolled alcoholism. During this time, I was a geographic bachelor. My wife lived in 29 Palms, CA while putting her daughter through cosmetology school. From 1999 to that time, I frequently drank past the point of intoxication 3 or more times per week.
3. On1 Sep 01, I had walked home form a local club after a night of drinking. This was very early Saturday morning prior to Labor Day Monday. When I walked to Ms . M_’s apartment, I though t that I was actually at my apartment. The apartment buildings at W _ Apartments where both Ms . M_ and I lived were 2 story building that housed a total of 16 apartments each. Each side of the building had an entrance and stairway that accessed 8 apartments. The apartment complex had several of these buildings one after the other. Ms . M_’s apartment was in the exact same location as my apartment, but in a different building. Both of our apartments were located on the left side of the apartment building, 2 nd floor, 3 rd apartment from the left.
4. When I hea r d Ms . M_ in the apartment, I though that I was being robbed. I then tried multiple keys but I was not able to open the door. I then broke through the door and attacked whom I thought was robbing me. It was not until a couple of minutes later that I realized that I was in the wrong apartment. When the police arrived, I did not resist arrest. I was taken to jail downtown Louisville, KY. During the second day in jail, I realized that I was an alcoholic. As the result of my actions, I plead guilty to the charge of Burglary III and was sentenced to 2 years probation and to pay restitution. Both were completed in accordance with the plea agreement. On Mar 04, all civilian charge s were expunged.
5. After being released on my own recognizance Tuesday, I sat down with my Commanding Officer, LtCol J_ J. L_ (Maj at the time of the incident), and told him exactly what had happened. This meeting took place in the early afternoon at the rectangular table in his office. I was allowed to enroll in alcohol treatment in Ft Knox. On 20 Sep 01, C_ V_ evaluated me at Ft Knox Alcohol and Drug clinic. After this evaluation, I went back to Ft Knox for 3-4 more appointments. I also began attending AA meetings in Louisville and in Southern Indiana. Initially, I had 3 relapses before staying sober. My sobriety date is 19 Oct 01. Do date, I have over 4 years of continuous sobriety. I attribute my sobriety to the continuous support I received from Lt Col L_, Sgt Maj J _ , RS SgtMaj, my AA sponsor, and my wife.
6. On 8 Jan 02, I was allowed to augment and accept a regular commission. On Friday, 28 Jun 02, LtCol L_ turned over command of RS Louisville to Maj J_ D. M_. On Saturday, 29 Jun 02 around 1000, I sat down with Maj M_ and we discussed the incident of 1 Sept 01, my alcoholism, and my active participation in AA to maintain my newly acquired sobriety. Maj M_ was supportive of recovery and instructed to attend a minimum of 2 AA meetings per week.

7. Towards the end of my 3-year tour at RS Louisville, a JAGMAN investigation was initiated on 12 Jun 03 into the incident of 1 Sep 01. A fellow Captain at 4 th Marine Corps District conducted the JAGMAN. As a result of the investigation, my PCS orders were cancelled. I began working with Capt S_ at Parris Island Legal. I initially refused NJP, but then accepted NJP on 3 Sep 03 as the result of a pre-trial agreement. From the time the investigation was initiated to my discharge, I continued to remain faithful to RS Louisville and to the Marine Corps.

8. Please consider my request to upgrade my discharge and to change my reason for discharge. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (member 1 and 4)
Applicant’s DD Form 214 (member 1 and 4 ) (previous)
Expungement Order & Certificate Form dtd March 8, 2004
Extract s from Service Record (8 1 pgs)
Letter from Applicant, dtd January 1, 2006 (3 pgs)
Applicant’s Request for Correction to DD Form 214, dtd July 19, 2004
Applicant’s DD Form 215
 MCI Online Student Record, dtd January 20, 2004
Navy E-Learning Course Completion (Prepare for Your New Management Role) dtd May 19, 2003
Navy E-Learning Course Completion (Lead and Develop Your Staff) dtd May 20, 2003
Navy E-Learning Course Completion (Communication Skills and Positive Attitude) dtd May 22, 2003
Navy E-Learning Course Completion (Delegation Basics) dtd May 23, 2003
 Navy E-Learning Course Completion (The Personal Approach in Delegation) dtd May 25, 2003
Navy E-Learning Course Completion (Managing the Delegated Environment) dtd May 26, 2003
 Job Offer Letter, from T_ K. I_ , Director, Human Resources, R_ G _ , dtd April 1, 2004 (2 pgs)
Professional/Exempt Performance & Development Appraisal 2005 (5 pgs)
Job Offer Letter, from T_ K. I_, Director, Human Resources, R_ G_ , dtd June 20, 2005 (2 pgs)
Certificate, Achievement Peak Lean Performance Workshop , Management Solutions International, Anderson, Indiana, 2005
Certificate, Inventory Record Integrity Workshop , Management Solutions International, Anderson, Indiana, 2005
 Certificate, Best Practices for Managing Inventories and Cycle Counts, dtd October 22 , 2005
 Manchester Who’s Who Consideration Letter , dtd November 19, 2005
Manchester Who’s Who Acceptance Certificate dtd December 21, 2005
Letter from Applicant, dtd February 6, 2006
 Character Reference ltr from J_ M. B_, dtd January 25, 2006

PART II - SUMMARY OF SERVICE

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

          Inactive: USMCR (DEP)    199207 13 - 19930901       COG
          NROTC    19930902 - 19970515       COG
         A ctive: USMCR   19970516 - 20020108      HON

Period of Service Under Review :
Date of Commission: 20020109              Date of Discharge: 20040203

Length of Service (years, months, days):

          Active: 0 2 00 25
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Commission: 26

Type of Commission: Regular (Indefinite)
Education Level: 16                                  Degree : BS

Highest Grade: Capt ain

Final Officer’s Fitness Reports were available to the Board for review.
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Meritorious Unit Commendation, National Defense Service Medal .


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/ (RESIGNATION) UNACCEPTABLE CONDUCT , authority: SECNAVINST 1920.6B .
Chronological Listing of Significant Service Events :

970516:  Applicant commissioned as a 2 nd Lieutenant in the United States Marine Corps Reserve and commenced active duty.
011011:  Applicant indicted by the Grand Jurors of the County of Jefferson, Commonwealth of Kentucky, Jefferson Circuit Court, Criminal Division: Burglary I, KRS 511.020, Class B Felony 10 to 20 Years, UOR 22000, One Count:
         Count One: That on or about the 1 st day of September, 2001, in Jefferson County, Kentucky, the above named defendant, A_ T. M_ (Applicant), committed the offense of Burglary in the First Degree by knowingly and unlawfully entering or remaining in a building located at xxxx Q_ C_, Apt. x with the intent to commit a crime, and when effecting entry or while in the building or in the immediate flight th er efrom he or another participant in the crime caused physical injury to B_ M_ against the peace and dignity of the Commonwealth of Kentucky.

011 13 0 :  Commonwealth of Kentucky Court of Justice approves Applicant motion for Pretrial Diversion of a Class D Felony, Burglary III .
Terms and conditions of Pretrial Diversion: Term of Pretrial Diversion 2 years; unsupervised; restitution to B_ M_ in the amount stated in the agreed order ( restitution $1534.00, 5% fee $76.70, total $1610.70 payable in one lump sum no later than June 15, 2002): obey all rules and regulations imposed by Probation & Parole; not commit another offense during the period of the Pretrial Diversion; remain drug and alcohol free and be subject to random testing; not have access to handguns other than those required for his military duties; no contact with victim.

020109:  Applicant accept s regular commission in the U.S. Marine Corps.
xxxxxx*:         Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC orders Preliminary In quiry .
 [Extracted from Report of Nonjudicial Punishment, dtd 030911. (*Date Preliminary Investigation ordered not contained in service record.)]
030625:  Preliminary In quiry completed.
[Extracted from Report of Nonjudicial Punishment, dtd 030911.]

030805:  Charge of violation of Article 133 of the UCMJ, Conduct Unbecoming an Officer and Gentleman, preferred against A pplicant.
          Specification: In that Captain A _ T. M _ (Applicant) , United States Marine Corps, Recruiting Station Louisville, Kentucky, 4 th Marine Corps District, Eastern Recrui t ing Region, while performing duties as operations officer at Recruiting Station Louisville, did, on or about 1 September 2001, in the night time, while drunk, wrongfully and dishonorably do the following:
                  1) break and enter a residence located at xxxx Q_ C_, Apt x , Louisville, Kentucky, the residence of B_ L. M_, a civilian, who was present at the ti me , with the intent to commit an assault therein;
                  2) strike B_ L. M_ on her head and body with his closed fists; and
                   3) flee the residence when individuals came to aid B_ L. M_ in response to her pleas for help, s uch conduct unbecoming an officer and gentleman and to the disgrace of the armed forces.
          [Extracted from Report of Nonjudicial Punishment, dtd 030911 and Punitive Letter of Reprimand , d t d 0309 03 ]
0 30812 :  Applicant submits Memorandum of Pretrial Agreement. Applicant agrees to accept Commanding General’s Non-Judicial Punishment, plead guilty to the c harge s and specification and submit a qualified resignation in lieu of administrative separation processing for cause , provided the convening authority agrees to withdraw the charges against Applicant from the pending Article 32 Pretrial Investigation.

030815:  Convening Authority accepts Pretrial Agreement offer.

 030903:  NJP for violation of UCMJ, Article 133: Conduct unbecoming an officer and gentleman.
 Award: Punitive letter of reprimand, forfeiture of $500.00 per month for 2 months. Not appealed.
030903:  Applicant given a Punitive Letter of Reprimand by Commanding General, Marine Corps Recruit Depot/ Eastern Recruiting Region , Parris Island, SC .
03 0911 :  Commanding General, Marine Corps Recruit Depot /Eastern Recruiting Region , Par r is Island , SC forwards Report of Nonjudicial Punishment to the Commandant of the Marine Corps recommend ing that Applicant’s qualified resignation in lieu of further administrative show cause proceedings be approved with a characterization of service as general, u nder h onorable c onditions .

031028:  Commandant of the Marine Corps (//s// Deputy Commandant for Manpower and Reserve Affairs) forwards Report of Nonjudicial Punishment to Assistant Secretary of the Navy (Manpower and Reserve Affairs) for review and final action, recommending approval of Captain M_’s (Applicant) qualified resignation request and that his service be characterized as General (Under Honorable Conditions) with a separation code of BNC1 (resignation – unacceptable conduct).

040106 :  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Commandant of the Marine Corps’ recommendation.
.
 040308:  Commonwealth of Kentucky, Court of Justice finds that Burglary III charge against Applicant was dismissed with prejudice and that there are no current charges or proceedings pending in the case. Grants Applicant’s motion to expunge and orders that the offense be expunged from court records.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040203 by reason of resignation ( unacceptable conduct ) (A) 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 (B and C).

The Applicant states his discharge was based on one isolated incident in during his “entire service career.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for a violation of Article 133 of the UCMJ, conduct unbecoming an officer and gentleman, thus substantiating the misconduct for which he was separated. The service record clearly documents that Applicant’s voluntary qualified resignation request in lieu of administrative separation for cause based on his misconduct was accepted by appropriate authority, and formed the basis for his discharge. In officer cases, separation codes are assigned by the Commandant of the Marine Corps (D). The record clearly documents that the Applicant’s separation code was properly assigned. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

In regard to the Applicant’s issue that the “incident occurred in a different period of service than my discharge,” the Board found no impropriety or inequity . While the underlying behavior which became the subject of NJP occurred while the Applicant held a Reserve commission, no break in service or termination of his status as a commissioned officer occurred. The Applicant remained subject to the UCMJ and his conduct was adjudicated by appropriate authority. The Board did note that the Applicant’s NJP occurred 2 days past the normal 2-year statute of limitations on the imposition of NJP; however, in Applicant’s case, the Board determined that the statute of limitations had not run in regard to court-martial jurisdiction over the charge preferred against him, and that the NJP was held at Applicant’s request , via a proposed pretrial agreement, specifically to avoid the possibility of more severe consequences stemming from court-martial proceedings. Further, the Board found no evidence in the record that the Applicant’s resignation request in lieu of further administrative separation processing for cause was not voluntarily and knowingly proffered . The Board found no impropriety or inequity in the government’s decision to accept the Applicant’s proposed resolution to dealing with his own misconduct. Relief denied.

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. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. 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 additional evidence related to this 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 1920.6 B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005 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 March 1997.

 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 .

 D. Chapter 1, Paragraph 1205 of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16F, effective 1 September 2001 until Present), RESPONSIBILITY FOR ASSIGNMENT OF SEPARATION PROGRAM DESIGNATOR (SPD).

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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