ex-, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR 19920203 - 19961110      Active:  19961111 – 20011017 HON

Period of Service Under Review:
Date of Appointment: 20011018    Age:
Years Contracted: Indefinite
Date of Discharge: 20081229      Highest Rank: MAJ
Length of Service: Year(s) Month(s) 15 Day(s)
Education Level:         AFQT: 71
Officer’s Fitness reports: Available

Awards and Decorations (per DD 214):     BSM NMCOSR (2) MSGR (Bahrain) NMUC (w/3 Campaign Stars) (2) CoA LoA

Periods of UA/CONF:

NJP:

- 20080430:      Article 133 (Conduct unbecoming an officer and a gentleman)
         Awarded: PUNITIVE LETTER OF REPRIMAND Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:


Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “SECNAVINST 1920.6C”
        
The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, that the DD 214 be corrected as appropriate.




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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. Secretary of the Navy Instruction 1920.6C (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 March 1997.

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 Applicant contends his positive in-service conduct warrants consideration for an upgrade.
2.       The Applicant contends his discharge characterization was disproportionally harsh given his offenses.
3.       The Applicant contends his post-service conduct is worthy of an upgrade.

Decision


Date: 20141209           Location: Washington D.C.        Representation:

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article 133 (Conduct unbecoming an officer and a gentleman). Based on the Applicant’s failure to demonstrate acceptable qualities of leadership required of an officer in his grade, his failure to properly discharge the duties expected of officers of his grade and experience, and his commission of a military or civilian offense that could be punished by confinement of six months or more; he was notified of the initiation of administrative proceedings requiring him to show cause for retention in the naval service before a Board of Inquiry (BOI). When notified of BOI proceedings, the Applicant rights to consult with a qualified counsel, submit a written statement, and participate in the BOI proceedings. The BOI found that the preponderance of the evidence proved the allegations against the Applicant and recommended his discharge with an Under Other Than Honorable characterization of service. The BOI’s recommendation was endorsed by the Applicant’s chain of command and forwarded to the Secretary of the Navy along with rebuttal statements from the Applicant. The Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the BOI’s recommendation on 24 November 2008.

: (Decisional) () . The Applicant contends his positive in-service conduct warrants consideration for an upgrade. Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment or service obligation and is not necessarily dependent upon the narrative reason for separation. The Applicant completed his first enlistment period with an Honorable characterization of his service and subsequently received a commission as a reserve officer and was discharged with an Honorable characterization upon augmentation and acceptance of a regular commission for that period. Each period of enlistment and service obligation is an independent obligation, and the characterization of service is determined for each specific period. The NDRB noted that the veterans benefits the Applicant is currently receiving are more likely than not based upon those prior Honorable periods of service. Furthermore, decisions reached by the U.S. Department of Veterans Affairs (VA) to determine if former servicemembers rate certain VA benefits do not affect previous discharge decisions made by the Marine Corps. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Marine Corps when determining a member’s discharge characterization.

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation to maintain good order and discipline. Violation of the UCMJ Article 133 (Conduct unbecoming an officer and a gentlemen) resulting from fraternization between a senior officer and an extraordinarily junior Marine is one such offense requiring processing for administrative separation. The record shows the Applicant freely elected NJP instead of a trial by court-martial. The Commanding General, Multi-National Force-West, imposed punishment in the form of forfeitures, 60 days restriction, and a Punitive Letter of Reprimand. The Punitive Letter of Reprimand documented the Applicants misconduct as “…knowingly fraternized with Private First Class _____, U. S. Marine Corps, an enlisted person, on terms of military equality, by communicating in an inappropriate and overtly sexual manner with PFC _____ via electronic mail and oral communications, inappropriately touching PFC _____ and inviting PFC _____ to your quarters after hours and offering her alcohol. You wrongfully and dishonorably communicated via electronic mail and oral communications certain dialogue and invitations of an overtly sexual nature to PFC _____, a married enlisted Marine, while you were at the time married and a superior commissioned officer of PFC _____. Finally, having knowledge of a lawful order issued to you by” your commanding officer “to stay away from PFC _____ and cease all contact with her, you failed to obey that order by wrongfully continuing to contact PFC _____, speaking with PFC _____ in her workspace and, on or about 6 April 2008, e-mailing PFC _____ inviting her to come to your assigned quarters and advising her ‘We’ll just have to be careful’ and ‘take a quick look to see if the coast is clear.’” The Applicant neither appealed the findings of his NJP nor rebutted the contents of his Punitive Letter of Reprimand. This same misconduct was also documented in his fitness report covering this period, in which the Applicant submitted a statement that expressed his responsibility and regret for the cited misconduct. The misconduct documented in both the Applicant’s Punitive Letter of Reprimand and fitness report normally results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.

The Applicant further implied that his Under Other Than Honorable Conditions discharge was inequitably pursued by his commanding general due to his disappointment in the Applicant’s lack of judgment and the timing and circumstances surrounding the Applicant’s misconduct. The record contained no evidence of any wrongdoing by the Applicant’s Commanding General or anyone else in the discharge process. In no way did the NDRB find that any level of emotional disappointment in the Applicant’s actions on behalf of his Commanding General negatively influence the presentation of his in-service conduct during the discharge process. The NDRB was able to comprehensively review the Applicant’s discharge paperwork and observed regularity in governmental affairs in that the Assistant Secretary of the Navy (Manpower and Reserve Affairs) and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB. The NDRB discerned no impropriety or inequity in the discharge process. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in egregious misconduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of Marine Corps officers, and the awarded characterization of service was warranted. Relief denied.

: (Decisional) () . The Applicant contends his discharge characterization was disproportionally harsh given his offenses. While other officers may have been charged with the same or similar offenses, each case must stand on its own merits. In the case of officers required to show cause for retention before a Board of Inquiry the Secretary of the Navy is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment.

In accordance with all applicable regulations, officers may be separated based on the commission of a serious military or civilian offense when the Secretary of the Navy believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or 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 appearance of regularity in this case. The Applicant was provided the opportunity to present his case before a court-martial, but waived that right by accepting NJP. The Applicant did not appeal the punishment imposed by the NJP nor did he rebut the material presented in the Punitive Letter of Reprimand issued as a result of his NJP. The Applicant was then provided and exercised his right to present his case before a board of inquiry. The board of inquiry found that a preponderance of the evidence proved the allegations presented and recommended the Applicant be discharged with an Under Other Than Honorable Conditions characterization. The Applicant submitted statements in rebuttal to his BOI and chain of command’s recommendations for separation. On 24 November 2008, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved of the recommendation of the BOI as legally reviewed and endorsed by the Applicant’s chain of command.

The NDRB 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 NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a Marine Corps officer. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.

: (Decisional) () . The Applicant contends his post-service conduct is worthy of an upgrade. The Applicant presented documentary evidence of civilian employment in his occupational field with significant time performing in Afghanistan in support of the country’s mission. Additionally, the Applicant presented evidence that he maintained his security clearance and received numerous awards and recognition for his service as a counterintelligence civilian contractor. After a review of the Applicant’s service record and other evidence presented to the NDRB, in conjunction with consideration of the factors listed in applicable references, it was determined by majority vote that partial relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Partial relief granted.

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 the discharge was proper and equitable at the time of discharge. However, based on the Applicant’s continued service in his occupational field as a contractor in a combat zone and maintaining his security clearance, the NDRB determined partial relief was appropriate. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain UNACCEPTABLE CONDUCT.

The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . The Applicant is directed to the Addendum for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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