From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER XXX-XX-, USMC Ref: (a) 10 U.S.C. §1552 (b) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 (Wilkie Memo) Encl: (1) DD Form 149 with attachments (2) Case summary 1. Pursuant to the provisions of reference (a), Petitioner filed enclosure (1) with the Board for Corrections of Naval Records (Board), requesting that his naval record be corrected to upgrade his characterization of service and make other conforming changes to his DD Form 214, to set aside his administrative separation, and retire Petitioner with back pay. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 29 January 2021, and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of his naval record, and applicable statutes, regulations, and policies, to include the guidance from the Wilkie Memo (reference (b)). 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. The Petitioner initially enlisted in the Marine Corps and began a period of active service on 30 May 1998. The Petitioner’s most recent reenlistment contract commenced on 1 December 2012 and was last extended in June 2017. c. Shortly following a separation from his wife, Petitioner’s spouse made an allegation to local civilian law enforcement authorities that Petitioner behaved inappropriately with her daughters. Petitioner was arrested in March 2016 and ultimately indicted on two charges later that year. d. On 19 July 2016, Petitioner’s command, notified Petitioner of administrative separation (Adsep) proceedings by reason of misconduct due to the commission of a serious offense. The underlying basis for Adsep processing was Petitioner’s indictment by civil authorities for sexual assault and an unrelated charge of sexual harassment in the workplace. e. The Adsep board was finally held on 5 January 2017. At the conclusion of witness testimony and documentary evidence presented, the Adsep board members found misconduct and voted to separate the Petitioner with a general (under honorable conditions) (GEN) discharge. The board members unanimously recommended to suspend Petitioner’s separation. Petitioner’s Commanding Officer at and the Commanding General at both disagreed with a suspended discharge and recommended Petitioner’s separation with a GEN characterization. Ultimately, on 13 June 2017, for reasons not disclosed on the order, the Commandant of the Marine Corps (CMC) directed that Petitioner’s case be referred to a new board that would only consider any misconduct due to the commission of a serious offense related to Petitioner’s criminal indictment. f. In June 2017, Petitioner requested a one-month enlistment extension in order to submit his retirement packet which was submitted in July 2017 with full support from his chain of command. Petitioner’s retirement request was approved on 20 July 2017 and his retirement date was set for 31 May 2018. Unbeknownst to Petitioner, in November 2017 his retirement date was deleted from the USMC Personnel Retrieval Database and his retirement date was replaced with an arbitrary end of active service date (EAS) of 12 February 2018. g. On both 19 December 2017 and again on 1 February 2018, Petitioner’s command notified him of his second Adsep proceedings. The sole basis for discharge was misconduct due to the commission of a serious offense as evidenced by his pending civilian criminal charges for aggravated sexual battery. The underlying basis for separation was the same alleged misconduct that was the subject of the January 2017 Adsep board. On 19 December 2017, Petitioner elected his right to consult with counsel and requested a hearing before an Adsep board. h. The Adsep appointing order was not dated until Friday 9 February 2018, and the Petitioner was not informed of the Adsep board date until the early evening hours of 9 February that the Adsep board was going to be held on Saturday 10 February 2018. The Petitioner’s civilian counsel was unable to attend on such short notice and his detailed defense counsel was on duty and unavailable to represent him at the Adsep board. No other military defense counsel was made available to Petitioner given the timeline. Petitioner was directed to return at 0900 hours on 10 February 2018 for the hearing. i. At the Adsep board, Petitioner was not represented by counsel and he represented defended himself. Petitioner was neither a licensed attorney, nor a military judge advocate having the qualifications prescribed in Article 27(b) of the Uniform Code of Military Justice. j. Following the conclusion of the evidence presented, the record reflects the Adsep board members deliberated for approximately 28 minutes before rendering a decision. The Adsep board unanimously found that the evidence supported the misconduct as alleged in the notification and voted to separate the Petitioner with a GEN characterization of service. k. On Monday 12 February 2018, Petitioner’s recommended a GEN, the Staff Judge Advocate found the proceedings legally and factually sufficient, and the CMC approved Petitioner’s immediate discharge. By the close of business on 12 February 2018, the Petitioner was effectively separated from the Marine Corps with a GEN discharge after nineteen years, eight months, and thirteen days of active duty service. l. The civilian criminal charges the Petitioner faced were never prosecuted. The charges were based on questionable accusations and the Circuit Court of ultimately refused to pursue the case. The indictments were nolle prosequi on 10 October 2018, and on 27 September 2019 the Court expunged all indictments, police, and court records in Petitioner’s case. CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants full relief, given the totality of the circumstances. Additionally, the Board reviewed his application under the guidance provided in the Wilkie Memo. Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. The purpose and intent of the Wilkie Memo is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including arrests, criminal charges, or any convictions. In keeping with the letter and spirit of the recent policy guidance, the Board concluded that the Petitioner’s claim has merit and that corrective action should be taken as outlined below. The Board determined that Petitioner’s Adsep was defective for multiple reasons and should be set aside. The Board was initially troubled by the timing of the Adsep board on the eve of an arbitrarily set EAS. The Board concluded that the Adsep processing and board were not in substantial compliance with applicable law and all Department of the Navy directives and policy at the time of Petitioner’s discharge. Moreover, the Board also determined there were fatal substantive and procedural defects with Petitioner’s Adsep board held on 10 February 2018. The Board observed that Petitioner had an Adsep board in 5 January 2017 and again on 10 February 2018. The underlying grounds for both Adsep boards, inter alia, were Petitioner’s pending civilian charges. The Board determined that effectively processing Petitioner twice for the same conduct violates longstanding MARCORSEPMAN policy. MARCORSEPMAN Paragraph 6321 clearly states that no Marine will be subjected to Adsep board action based upon conduct which has previously been the subject of Adsep board proceedings when the evidence before the subsequent board would be the same as the evidence before the previous board, except in situations not applicable to Petitioner’s case. The January 2017 and February 2018 Adsep boards adjudicated the very same conduct twice in contravention of the MARCORSEPMAN. Additionally, the Board concluded that convening the Adsep board with little to no notice on a Saturday morning without the benefit of his civilian or military counsel present violated the most basic due process norms and principles, and offended one’s sense of equity and justice for even the most prosecutorial-minded individuals. Moreover, while not specifically identifying any wrongdoing, the Board determined that the circumstances surrounding Petitioner’s separation raised at least an appearance of impropriety and suggested questionable motives in the handling and processing of Petitioner’s retirement revocation and Adsep. Lastly, while not known to the Marine Corps at the time, the underlying misconduct forming the sole basis for Petitioner’s Adsep was nolle prosequi, never adjudicated, and ultimately expunged from Petitioner’s record. With that being determined, and especially in light of the Wilkie Memo, the Board concluded after reviewing the record holistically and given the totality of the circumstances and purely as a matter of clemency, the Board concluded that no useful purpose was served by discharging the Petitioner just prior to his retirement eligibility date, and that he instead be allowed to retire in his rank of gunnery sergeant (E-7) with effectively 20 years, 0 months, and 0 days of qualifying active duty service. The Board declined to allow Petitioner to be reinstated on active duty and allowed to continue active duty service. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action: That Petitioner's naval record be corrected, where appropriate, to show that: The Adsep board of 10 February 2018 is set aside, and all Adsep-related and corresponding derogatory documents and material to include, but not limited to: the Adsep Board Report and Findings and Recommendations (with enclosures), the Adsep notification forms (from both December 2017 and February 2018), the Adsep acknowledgement of rights form, the Adsep appointing order, the corresponding chain of command Adsep endorsements and discharge approval, and any applicable separation orders, be removed from Petitioner's naval record. Petitioner's discharge from the U.S. Marine Corps effective 12 February 2018, is rescinded. Note: Petitioner's DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date this period of 12 February 2018 will be removed/expunged. That Petitioner submitted a request to be transferred to the Fleet Marine Corps Reserve (FMCR), effective 1 June 2018, and such request was approved by cognizant authority. That there be inserted in Petitioner's naval record a memorandum in place of the service credit, containing appropriate identifying data that such memorandum was directed by order of the Secretary of the Navy in accordance with the provisions of federal law, and that such boards may not conjecture or draw any inferences as to the nature of the memorandum. Additionally, Petitioner shall be issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty) listing the following: block 4a (Grade, rate or rank) "GYSGT", block 4b (Pay grade) "E7", block 12b (Separation date this period) "31 May 2018", block 12c (Net active service this period) "20 (year(s)), 00 (month(s)), 02 (day(s))", block 12i (Effective date of pay grade) "2013 (year(s)), 07 (month(s)), 01 day(s)), block 23 (Type of separation) "Transferred to the FMCR", block 24 (Character of Service) "Honorable", block 25 (Separation authority) "MARCORSEPMAN para. 7008", block 26 (Separation code) "NBD1", block 27 (Reentry code) "RE-2A", block 28 (Narrative reason for separation) "Sufficient service for retirement", block 29 (Dates of time lost during this period) "(5) 20160331 - 20160404". Note: Defense Finance and Accounting Service (DFAS) will complete an audit of Petitioner's records to determine if Petitioner is due any back pay and allowances. Petitioner shall be issued a new Honorable Discharge Certificate. No further relief shall be granted. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 2/25/2021 Deputy Director