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USMC | DRB | 2006_Marine | MD0600531
Original file (MD0600531.rtf) Auto-classification: Denied


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

ex-1stLt, USMCR
Docket No. MD06-00531

Applicant ’s Request
The application for discharge review was received on 20060131 . The Applicant requests the Discharge 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 designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070201 . 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 General (Under Honorable Conditions) by reason of Determination of Service Secretary .



PART I - ISSUES AND DOCUMENTATION

Decisional Issues
Equity:          Discharge not warranted by circumstances and service record
                 Discharge disproportionate to similarly situated case
Though not a procedural right, should have received a board of inquiry due to merits of case and prior service

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Service 2)
Applicant ’s purported DD Form 214 for period November 18, 2001 to August 21, 2003 (Service 2) *
Applicant ’s enlisted DD Form 214 (Service) (2)
 Applicant ’s officer candidate DD Form 214 (Service 8)
 Letter from Applicant , undated
 Applicant ’s petition to the Board for Correction of Naval Records, dated September 29, 2005 ( 130 pages )
Applicant ’s Navy Achievement Citation for May 20, 1990 to July 3, 1993
 Applicant ’s Navy Achievement Citation for June 24 to July 9, 1995
 Applicant ’s Navy Achievement Certificate for June 24 to July 9, 1995
 Applicant ’s Certificate of Commendation, dated October 26, 1996
Applicant ’s Navy and Marine Achievement Medal certificate, dated February 5, 2000
 Applicant ’s Joint Service Achievement Medal citation f or period July 23, 2001 to November 6, 2001
Applicant ’s Joint Service Achievement Medal certificate, dated January 10, 2002
TBS First Command Evaluation report dated May 21, 2002
 TBS Second Command Evaluation report, undated
Page of TBS student evaluation remarks pertaining to the Applicant , undated
Applicant ’s student MCI online records, undated
Letter from Applicant to Captain F. P_, Defense Institute of International Legal Studies, dated November 18, 2002

* See discussion in Part III.

PART II - SUMMARY OF SERVICE

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

          Inactive:         USMCR (DEP)      19 8 90210 – 19 891106      COG
          Active:   USMC      19891107 – 19931106      HON
          Inactive:        USMCR    199 40403 – 19980 606     
         Active:   USMC R (C)         19980607 – 19980 813      HON
          Inactive:        USMCR    19980814 – 20011117      

Period of Service Under Review :
Date of Commissio n: 19980814 *             Date of Discharge: 20030919

Length of Service (years, months, days):

          Active: 0 1 10 0 2
         Inactive: None
Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Commission: 26

Type of Commission: Re serve

Education Level: 19                                  Degree : Juris Doctor

Highest Grade: First Lieutenant

The Applicant’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): Combat Action Ribbon, Navy and Marine Corps Achievement Medal (3d A wd), National Defense Ser vice Medal (2d A wd), Marine Corps Good Conduct Medal, Kuwait Liberation Medal (Saudi Arabia), Southwest Asia Service Medal (3d A wd), Sea Service Deployment Ribbon , Selected Marine Corps Reserve Medal, Kuwait Liberation Medal (Kuwait), Joint Meritorious Unit Award, Navy Unit Commendation, Meritorious Mast, Letter of Appreciation (3d A wd), Certificate of Commendation, Rifle Qualification Badge (Expert 3d A wd), Pistol Qualification Badge (Expert 5 th A wd)

* A s a Second Lieutenant. The Applicant assigned to The Basic School on 2001118.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):
GENERAL (UNDER HONORABLE CONDITIONS)/ Determination of Ser vi ce Secretary , authority: SECNAVINST 1920.6B and MARCORSEPMAN par 4102.

Chronological Listing of Significant Service Events :

980814 :  Applicant commissioned as a Second Lieutenant in the United States Marine Corps Reserve.

021115 :  NJP by Commanding General, Training Command , Quantico, Virginia.
V iolation of UCMJ, Article 133:
          Specification: In that First Lieutenant J_ W. H_ ( Applicant ), did, from on or about 020919 to 021002, at or near Newport, RI, while undertaking the preparation for the final mock trial examination of Basic Lawyer Class 02040 at Naval Justice School, wrongfully and dishonorably provide and receive unauthorized aid by providing documents to and receiving documents from First Lieutenant M_ M. G_, USCMR, a fellow student in the course, that were subsequently submitted for score.
Plea: Guilty. Finding: G uilty.
         Violation of UCMJ, Article 92:
          Specification: In that First Lieutenant J_ W. H_, having knowledge of a lawful order issued by LCDR C. J. C_, Criminal Law Primary Instructor for Basic Lawyer Class 02040, Naval Justice Scho ol, to complete the preparation of written submissions for students, an order which it was his duty to obey, did, at or near Newport, RI, from on or about 020919 to 021002, fail to obey the same by wrongfully collaborating with First Lieutenant M_ W. G_.
Plea: Guil ty. Finding: Guilty.
Violation of UCMJ, Article 107:
Specification: In that First Lieutenant J_ W. H_, USMC, did, at or near Naval Justice School, Newport, R I, on or about 021002, with intent to deceive, make to Major G_ C_, USMC, an official statement, to wit: “2. Defense motion to dismiss multiplicious charge: I researched and prepared this motion and sent it to 1st Lt G_ at his personal email account.” or words to that effect, which statement was totally false, and was then known by the said First Lieutenant J_ W. H_, to be so false.
Plea: Not Guilty. Finding: Guilty.
         Award: Punitive letter of reprimand.

021119:  Applicant appealed nonjudicial punishment.

 030103:  Commanding General, Training and Education Command , denied Applicant ’s appeal .
030117:  Applicant issued a Punitive Letter of Reprimand by Commanding General, Training Command, Quantico, Virginia.
030131:  Commanding General, Training Command, forwards Report of Nonjudicial Punishment to Secretary of the Navy.

 030131:  Commanding General, Training Command , notified Applicant of intended recommendation for administrative separation with a characterization of service as general (under honorable conditions). The factual basis for this recommendation was substandard performance of duty and misconduct.
030218:  Applicant responded to Notification of Recommendation for Administrative Separation requesting to be retained in the United States Marine Corps. Applicant objected to the use of the Notification Procedure as the method of separation, and request that he be afforded the opportunity to show cause before a Board of Inquiry (BOI).
030304:  Commanding General, Marine Corps Combat Development Command did not require Applicant to show cause, and concurred with the recommendation that he be administratively separated via the notification procedure with a general under honorable conditions characterization of service .
030327 :  Commandant of the Marine Corps r ecommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) approval of Applicant ’s administrative separation with a General (Under Honorable Conditions) discharge by reason of I nvoluntary D ischarge - D etermination of S ervice S ecretary.

030819 :  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant ’s discharge for a General (Under Honorable Conditions) by reason of Involuntary Discharge - Determination of Service Secretary . Separation Authority finds sufficient other grounds to support separation notwithstanding Applicant’s challenge to the false official statement charge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030919 by reason of D etermination of S ervice S ecretary (A and B ) with a service characterization of G eneral ( U nder H onorable C onditions). 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 Applicant pled guilty at NJP to violating Articles 92 and 133 of the Uniform Code of Military Justice by wrongfully collaborating with another student in the Naval Justice School Basic Lawyer Course during the final mock trial exercise. He was also found guilty, contrary to his plea, of violating Article 107. In his NJP appeal, his response to proposed separation, and now his petition to the NDRB, the Applicant presents evidence and argument indicating that th e finding of guilt to the charge of violating Article 107 was not warranted. Whatever the merits of this position, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) explicitly determined that sufficient misconduct forming the proposed bas e s for discharge existed, and that discharge was warranted, notwithstanding the Applicant’s Article 107 violation challenge . In reviewing the record, the Board determined that the Applicant was afforded all of his procedural rights at NJP, including appeal, and all of his procedural rights during the administrative separation process which followed. The record demonstrates that the Applicant’s evidence and arguments , whether on the merits of the allegations, the equity of notification procedure versus a board of inquiry, the appropriateness of separation in light of his overall highly commendable prior service, and/or the sincerity of his expressed remorse, were carefully considered at each level of review . The NDRB found no impropriety or inequity in the discharge proceedings or decisions on the merits. The Applicant’s acknowledged misconduct was a “significant negative aspect” of his performance which, under the circumstances, to include his standing as an officer, outweighed the positive aspects of his performance for the period of service under review. Therefore, characterization of service as general (under honorable conditions) was appropriate, and r elief is not warranted.

The Applicant argues that his discharge was inequitable because another servicemember was punished less harshly for similar misconduct, and was not administratively separated as he was. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. The evidence reviewed, including the Applicant’s own admission, supports the conclusion that the Applicant committed the misconduct, that separation from the Naval service was appropriate, and that a general (under honorable conditions) discharge was warranted. As such, relief is denied.

The Applicant explicitly requests an upgrade to his dis c harge in order to join a Reserve unit. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, relief on this basis is not warranted.

The NDRB did note a discrepancy in the Applicant’s service record. In the Applicant ’s service record, and also submitted by the Applicant as supporting documentation, is a facially proper DD 214 which p urports to indicate that the Applicant was voluntarily discharged from the U.S. Marine Corps Reserve with a characterization of service as honorable on August 21, 2003 in order to accept a regular commission. The NDRB found that the Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s involuntary discharge with a characterization of service as general (under honorable conditions) on August 19, 2003 , two days prior to the period purportedly covered by this DD 214 ; noted that the Applicant does not claim to have been honorably discharged and to have received a regular commission; concluded that preparation of this DD 214 was administrative error; and determined that it was not relevant to the facts and circumstances of the Applicant’s petition.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB 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. Examples of documentation that should be provided to the Board to support claims of post-service accomplishments include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterizati on of 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 1920.6B (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. Chapter 4, Paragraph 4102 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 September 2001 until Present), PROCESSING FOR SEPARATION.
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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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