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USMC | DRB | 2006_Marine | MD0600757
Original file (MD0600757.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. MD06-00757

Applicant ’s Request
The application for discharge review was received on 20060403 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and t he Narrative Reason for Separation be changed to “ Secretarial Authority . ” The Applicant requests a documentary record discharge review. The Applicant designated a civilian counsel as the representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070222 . 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 Under Other Than Honorable Conditions by reason of unacceptable conduct.




PART I - ISSUES AND DOCUMENTATION

Decisional Issues
         Propriety: BOI membership.

         Equity: Quality of service.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Supplemental Statement from G_ M_, Applicant ’s counsel
 Applicant ’s DD Form 214 (Member 4)
Three pages from Applicant ’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
[EVALUATE ON CASE BY CASE BASES]

          Inactive:         USMCR (DEP)      19920528 - 19920603       COG
          Active:  USMC     19920604 - 19941201      HON
                           19941202 - 19980804      HON

Period of Service Under Review :
Date of Commission: 19980805              Date of Discharge: 20031007

Length of Service (years, months, days):

          Active: 05 02 03
         Inactive: None

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

Age at Commission: 33

Type of Commission: Regular (Indefinite)
Education Level: Masters                                     MOS : 0302 (Infantry Officer)

Highest Grade: Capt
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): Joint Service Achievement Medal, Nation al Defense Service Medal (2d Awd), Sea Service Deployment Ribbon (4 th Awd), Expert Rifle Badge (4 th Awd), Expert Pistol Badge (7 th Awd) .


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

021227 :  NJP for violation of UCMJ, Article 107 (2 specs): False official statement.
Violation of UCMJ, Article 133 (2 specs): Conduct unbecoming an officer and gentlemen.
Violation of UCMJ, Article 134: Adultery on divers occasions between 020401 and 020630 .
         Award: Letter of reprimand. Not appealed.

030110 :  Applicant voluntarily tendered an un qualified resignation in lieu of processing for administrative separation for cause .
030114:  Commanding General, Marine Corps Base Hawaii, forwarded Report of Nonjudicial Punishment to the Commandant of the Marine Corps.
030320 :  Show Cause Authority for the Marine Corps denied Applicant ’s request for resignation in lieu of separation for cause .

030404:  Board of Inquiry found that a pr eponderance of the evidence prove d the allegations and recommended separation with an other than honorable discharge.
0 3 0627 :  Commandant of the Marine Corps recommended to Secretary of the Navy that the Applicant be separated under other than honorable conditions with a separation code of GNC1 ( involuntary discharge - unacceptable conduct) (board ) .

030904 :  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant ’s resignation request for under other than honorable conditions discharge by reason of involuntary discharge - unacceptable conduct) (board).


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031007 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 Board presumed regularity in the conduct of governmental affairs (D).
Propriety – BOI membership: The Applicant contends that his discharge was improper because the “Board president refused to recuse himself after admitting to a substantially prejudicial bias towards SNM and the charges.” Per reference (A), the Applicant may submit to the convening authority for appropriate action, any relevant matter which, in his view, indicates that a particular member should not consider the case. A member shall be excused if found by the convening authority or the legal advisor (not the senior member) to be unable to render a fair and impartial decision in the Applicant’s case. According to the Applicant’s own documentation, the Senior Member consulted with the legal advisor to determine whether he should be excused. What is more, the Show Cause Authority for the Marine Corps considered the Applicant’s statements of deficiency concerning the legal advisor’s failure to excuse the Senior Member. The Show Cause Authority determined this claim to be without merit. Based upon the above review, the Board unanimously concluded that the BOI was in compliance with applicable statutes, rules, and regulations. Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief. Thus, the Board concluded that relief is not warranted .

Equity – Quality of service: The Applicant contends that his characterization of discharge was unduly harsh, considering his more than 11 years of devoted service to the Marine Corps and that his “adulterous conduct was not service discrediting nor did it prejudice good order and discipline.” When a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service 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 service was not honorable. Indeed, the Applicant’s records contain n onjudicial punishment proceedings on 20021227 for violation of UCMJ Article 107 False official statements (2 specifications); Article 133 Conduct unbecoming an officer (2 specifications); and Article 134 Adultery. These violations are serious offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial and typically warrant a characterization of service as under other than honorable conditions. The Applicant’s conduct, which forms the primary basis for determining the characterization of his service, falls well below that required for an honorable characterization of service. Relief denied.

The Applicant requests a Narrative Reason for Separation change to “Secretarial Authority.” Under its responsibility to examine the propriety and equity of a discharge, the NDRB will change the reason for discharge if such a change is warranted. In this case, the summary of service clearly documents the Applicant’s unacceptable conduct. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Therefore changing the Narrative Reason for Separation would be inappropriate. 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 post-service accomplishments or any other evidence related to the 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 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 . 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 .

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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