Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901494

Original file (MD0901494.rtf) Auto-classification: Denied

ex-LTCOL, USMC

Current Discharge and Applicant’s Request

Application Received: 20090427

Characterization of Service Received:

Narrative Reason for Discharge: UNACCEPTABLE CONDUCT
Authority for Discharge: SECNAVINST 1920.6B

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service
Prior Service:
Inactive:         USMCR     19870924 - 19880818     Active:          19870307 -19870403 HON

Period of Service Under Review:
Date of Appointment : 19880819    Age at Enlistment:
Period of E nlistment : Indefinite
Date of Discharge: 20070201      H ighest Rank: LIEUTENANT COLONEL
Length of Service : 18 Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:
MOS: 4402
Officer’s Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol NCM AFEM

Periods of UA / CONF : NJP: SCM: SPCM: CC:

Retention Warning Counseling :

- 20060210 :       For lack of judgment and inappropriate behaviors not consistent with the high standards of conduct and morality expected of Marine officers.

Types of Documents Submitted/reviewed

Related to Military Service:
                  DD 214:          Service / Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:               Finances:                 Education /Training :
         Health/Medical Records:          Substance Abuse:                  Criminal Records:
         Family/Personal Status:                   Community Service:                References:
         Additional Statements :
                  From Applicant:          From Representat ion :               From Congress member :

         Other Documentation :

Pertinent Regulation/Law

A. Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 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 of 14 Mar 97.

B. 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 V, Para 502, Propriety and Para 503, Equity .

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

Applicant’s Issues

1. The recommendation of the board of inquiry was inherently unfair and unjust.
2. The Applicant’s ability to serve was impaired by marital, emotional and family problems.
3. The Applicant has expressed extreme remorse and regret.
4. Post-service conduct.
5. The Applicant’s p ost Marine Corps career and activities have been irreparably harmed by his discharge characterization.
6. The Applicant’s board of inquiry (BOI) lacked a legal basis for its decision and recommendation.
7. The Applicant received ineffective legal counsel.
8. The Applicant desires to reenlist in the military.
9 . The BOI senior member had prior knowledge of the Applicant and should not have served on the board.

Decision

Date: 20 10 0415 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall UNACCEPTABLE CONDUCT .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warning . The Applicant’ s command directed him to show caus e for retention on 24 August 2006, and convened a board of i nquiry (BOI) to examine allegations of misconduct including: f ailure to demonstrate acceptable qualities of leadership required of an offic er of the Applicant’s grade; c ommission of a military or civilian offense that could be punished by confinement of six month s or more , i ntentional misrepresentation or omission of a material fact in official written or official oral statements and violation of the UCMJ Articles 133 (Conduct unbecoming an officer and a gentleman) and Article 134 (Adultery) . The Applicant was represented by legal counsel and gave oral testimony during the BOI proceedings. The BOI found a preponderance of the evidence proved the misconduct and recommended separation with an Under Other Than Honorable Conditions characterization of service. There was no minority opinion. Based on the recomm endation of the BOI , the Applicant’s command administratively processed for separation with an Under Other Than Honorable Conditions characterization of service.

: (Decisional) ( ) . The Applicant contends the recomm endation of his BOI was inherently unfair and unjust . The Applicant believes his BOI findings were draconian and not consistent with the handling of similar cases. The NDRB carefully examined all evidence of record, including evidence and statements submitted by the Applicant and his representative . The NDRB found no issues of inequity or impropriety in the conduct of the Applicant’s BOI , its final recommendation , the Applicant’s administrative separation or characterization of service . Further, the record demonstrates the Applicant engaged in willful and repeated misconduct over an extended period of time. I n the face of two investigations, numerous informal and formal requests , by the husband of the woman in question and two superior Marine officers, the Applicant refuse d to discontinue his activities. S pecifically, these activities consisted of engaging in an inappropriate romantic relationship with a woman mar ried to a subordinate officer in another service of the United States military. The NDR B noted as the respondent to his BOI, the Applicant’s position was to admit the misconduct and further state that his actions should be judged harshly and severely. The Applicant’s offenses are serious and could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court- martial. The NDRB found the Applican t’s discharge was equitable co nsidering his rank, position and in - service experience . The Applicant failed to use good judgment, common sense and self disciplin e expected of Marine O fficers. Nevertheless, his command did not refer the Applicant for a court- m artial , but opted for a far more lenient administrative discharge.

: (Decisional) ( ) . The Applicant contends his ability to serve was impaired by marita l, emotional and family problems . The NDRB recognizes the time in question as an emotional and stressful period in the Applicant’s life. However, it is clear the Applicant was responsible for his actions at the time of the misconduct , was held accountable for those actions and was found to have no potential for further service . The NDRB found the Applicant’s marital, emotional and family problems, while significant, did not mitigate the misconduct which led to his separation.

: (Decisional) ( ) . The Applicant has expressed extreme remorse and regret regarding his misconduct . The NDRB carefully considered the Applicant’s statements to the NDRB, his BOI as well as relevant portions of character statements submitted on behalf of the Applicant. While the NDRB does not doubt the sincerity of the Applicant’s expressions of remorse and regret, his misconduct of record remains a serious departure from that expected of a Marine officer of his rank, experience and tenure. An upgrade would be inappropriate.

: (Decisional) ( ) . The Applicant requests the NDRB consider pos t-service conduct to gain a more thorough understanding of his performance and conduct during the period of service under review. The NDRB considers post-service conduct in order to determine if the miscond uct committed while in service was indicative of the Applican t's character or an aberration. The Applicant particularly desires for the NDRB to consider his post discharge actions with his extended family and submitted numerous letters of re ference and support to substantiate his claim . The NDRB recognizes the Applicant’s support of his children and his efforts to stabilize both families as commendable. However, in the view of the NDRB, these acti ons are his moral duty as a father and are not sufficient to warrant an upgrade . Th e Applicant submitted letters indicating involvement in church and service to the community through his immigration law practice. The NDRB applauds the Applicant’s efforts in this area . However, the NDRB found the Applicant’s post-service conduct was not sufficient to mitigate his in-service misconduct.

On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

: (Decisional) ( ) . The Applicant contends his post Marine Corps career and activities have been irreparably harmed by his discharge characterization. T he Applicant cites significant financial and professional burdens as a result of his efforts to support and remain involved with his children. He further contends his characterization of service is unduly harsh in light of these obligations. The NDRB does not agree the Applicant’s issued dis charge is unduly harsh due to the severity and protracted nature of his misconduct, particularly considering the Applicant’s rank and experience at the time of the misconduct. The NDRB views any financial burden or professional harm as the direct and foreseeable consequence of the Applicant’s misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his BOI lacked a legal basis for its decision and recommendation. More specifically, the Applicant argues no jurisdiction was established under the UCMJ for the adultery charge and no evidenc e was submitted to indicate his misconduct affec ted the Marine Corps in any discrediting way. Additionally, the Applicant contends the BOI separated him, in part, due to omission of a material fact during an official oral statement he made to his commanding officer while being formally counseled regarding his inappropriate relationship with the wife of another officer. In the statement, the Applicant failed to disclose the woman, with whom he was having the relationship, was already pregnant. The Applicant argues the government presented no evidence he had any intent to deceive, any obligation to disclose the information or anything to gain by being deceptive. However, the NDRB found no evidence, and the Applicant produced no evidence, this particular omission alone was prejudicial to the final recommendation of BOI considering the seriousness of other charges under examination.

Regarding the Applicant’s contentions pertaining to jurisdiction and evidence: T he record reflects the Applicant and counsel were advised, upon the opening of BOI proceedings, t h e board would function as an administrative rather than a judicial body; and except for Article 31(b) of the UCMJ, the rules of evidence applicable at courts-martial would not apply. The Applicant and counsel were also advised BOI decisions would be made by a majority vote based on the preponderance of the evidence, and board members would rely on individual judgment and experience in determining the weight and credibility to be given to the evidence. Further, the findings of such boards are neither final determinations nor legal judgments, nor are the recommendations of the board binding on convening or reviewing authorities.

With regard to the Applicant’s contention no evidence was presented indicating the Marine Corps was affected or discredited by his misco nduct: T he NDRB noted during his BOI testimony, the Applicant made several statements under oath admitting to the all eged misconduct. In a statement pertaining to his misconduct, the Applicant said , “These are decisions that I entered into freely and I made some decisions here that obviously affect ed my office as a Marine Corps O fficer and I apologize for this, gentlemen.” The NDRB found plentiful evidence the Applicant’s misconduct was prejudicial to good order and discipline with regard to having an adulterous relationship with the wife of a subordinate officer in the United States Air Force , and brought significant discredit upon the Mar ine Corps, particularly Marine Field Grade O fficers, in the eyes of a sister service. Given the administrative nature of the BOI and th e Applicant’s clear admission the misconduct affected his office as a Marine Officer , the NDRB found sufficient evidence to support the finding and recomme ndation of the BOI. The issue is without merit.

: (Decisional) ( ) . The Applicant contends he received ineffective legal counsel during his BOI. After careful review of the Applicant’s various contentions regarding the effectiveness of his legal counsel as well as complete and thorough review of the evidence of record, to include the record of the Applicant’s BOI , t he NDRB found the Applicant’s counse l represented him in an effective manner. The NDRB also noted the Applicant was , himself, a Marine Corps attorney of considerable experience , and would have had the knowledge and ability to recognize legal errors that substantially affected his case. The NDRB also opined the Applicant could have sought different military or civilian counsel if he believed the case was not being handled in a satisfactory manner. Relief denied.

: (Nondecisional) The Applicant desires to reenlist in the military. Since the NDRB has no jurisdic tion over reenlistment, reentry or reinstatem ent into the Navy, Marine Corps or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. The Applicant is referred to the addendum, Reenlistment/RE-code for further information regarding this issue.

: (Decisional) ( ) . The Applicant contends the BOI senior member had prior knowledge of the Applicant from Command and Staff College and should not have served on the board. All requirements for membership of the Applicant’s BOI were met according to JAGINST 5830.1. The Applicant presented no evidence any pre-existing relationship between the Applicant and the senior member was sufficient to be prejudicial to the senior member’s objectivity or negatively affected the outcome of the Applicant’s BOI.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain UNACCEPTABLE CONDUCT .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. 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 . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - 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 subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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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USMC | DRB | 2009_Marine | MD0901494

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