ex-, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      19960611 - 19960708     Active:           19960709 – 20070518 HON

Period of Service Under Review:
Date of Current Enlistment: NFIR        Age at Enlistment:
Period of Enlistment:
Date of Discharge: 20091113     Highest Rank:
Length of Service: 13 Year(s) Month(s) 05 Day(s)
Education Level:        AFQT: 64
MOS: 5831
Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol (3) (2) (2) CoC(2) MM(4)

Periods of UA/CONF:     NJP:     SCM:

SPCM:

- 20080417:      Article (Failure to obey order or regulation, 4 specifications)
         Specification 1: Between 20061201 and 20070731, sexually harassed LCpl S. by making sexual advances to her while in a supervisor/subordinate relationship.
         Specification 2: Between 20060623 and 20070925 Sexually harassed LCpl M. by making unwelcome sexual comments to her, creating a hostile work environment.
         Specification 3: Between 20060623 and 20070925, sexually harassed LCpl Z. by making sexual advances to her while in a supervisor/subordinate relationship.
         Specification 4: Between 20060623 and 20070925, sexually harassed LCpl B by making unwelcome sexual comments which interfered with work and created an intimidating, hostile or offensive work environment.
         Article 134 (General Article, 5 Specifications)
         Specification 1: Between 20060623 and 20070925 Orally communicated to LCpl Z certain indecent language.
         Specification 2: Between 20061201 and 20070925 Orally communicated to LCpl B certain indecent language.
         Specification 3: Between 20061201 and 20070925 Orally communicated to LCpl C certain indecent language.
         Specification 4: Between 20061201 and 20070925 wrongfully solicit LCpl Z to commit adultery.
         Specification 5: Between 20061201 and 20070925 wrongfully solicit LCpl S to commit adultery.
         Sentence:
CA Action: The sentence is approved as adjudged and, except for the bad conduct discharge, ordered executed.

CC:

Retention Warning Counseling:

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. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C. 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 that clemency should be granted due to his history of prior honorable service, and the fact that this is the first time he had ever gotten into trouble.
2.       The Applicant contends that there was insufficient evidence to convict him at Court Martial for using indecent language.
3.       The Applicant contends that ineffectiveness of counsel should be considered in granting clemency.

Decision


Date: 20141216           Location: Washington D.C.        Representation:

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

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 completed a thorough review of the circumstances that led to the Applicant’s 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 UCMJ: Article 92 (Failure to obey order or regulation, 4 specifications) and Article 134 (General Article, 5 Specifications). Based on the offense(s) committed by the Applicant, and after a General Court-Martial Convening Authority review, the Applicant was punitively discharged from the service with a Bad Conduct Discharge.

: (Decisional) () . The Applicant contends that clemency should be granted due to his history of prior honorable service, and the fact that this is the first time he had ever gotten into trouble. Each enlistment is a separate obligation. As noted on the Applicant’s DD-214, he had served honorably from 19960709 – 20070518. However, regardless of previous honorable service, certain serious offenses warrant separation from the service to maintain proper order and discipline. The Special Court Martial determined that the offenses committed by the Applicant, including sexual harassment, and solicitation to commit adultery with subordinates, should be punished with a punitive discharge from the service. The NDRB reviewed the equity of the discharge, and agreed that a punitive discharge was warranted based on the offenses committed by the Applicant. Relief denied.

: (Decisional) () . The Applicant contends that there was insufficient evidence to convict him at Court Martial for using indecent language. This issue was brought forward during the appeal of the Special Court Martial. The United States Navy-Marine Corps Court of Criminal Appeals determined that the issue was without merit. The Appellate court ruled: “…even if the language that the appellant contests is removed from the specification, the remaining language still states an offense and the evidence is legally and factually sufficient to support the members’ finding of guilt.” The NDRB is charged to review the propriety of the discharge; that is to say, the NDRB must determine whether the discharge was properly issued. Given that a special court martial found that there was sufficient evidence to convict the Applicant of the charge and that the Court of Appeals found that the evidence was sufficient to back-up the finding of guilt, the NDRB has determined that the discharge was indeed proper. Relief denied.

: (Decisional) () . The Applicant contends that ineffectiveness of counsel should be considered in granting clemency. This issue was also considered by the United States Navy-Marine Corps Court of Criminal Appeals, and it was found to be without merit. Therefore, assuming regularity in government affairs, the NDRB has found that the issue is not one for which in can grant relief. Relief denied




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 remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain COURT MARTIAL. 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 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