DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Docket No: 8765-20 Ref: Signature Date Subj: REVIEW OF NAVAL RECORD ICO FORMER MEMBER XXX XX USMC Ref: (a) Title 10 U.S.C. 1552 Encl: (1) DD Form 149 w/enclosures (2) CMC ltr 1920 JPL of 8 May 17 (3) ASN (M&RA) Action of 22 May 17 (4) BCNR Docket No. 1989-18 of 17 Sep 18 (5) General Accounting Office Testimony (6) Protect our Defenders Report 1. Pursuant to the provisions of reference (a).Subject, hereinafter referred to as Petitioner filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to establish Petitioner's eligibility for a disability discharge and severance pay. 2. A three-member panel of the Board, sitting in executive session, considered your application on 21 January 2021. The names and votes of the panel members will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of the Board. Documentary material considered by the Board consisted of your application together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Pe titioner'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. Petitioner entered active duty with the Marine Corps in May 2001 and served successfully for a number of years rising to the level of warrant officer in 2013. However, he entered into a romantic relationship with a married enlisted member in 2014 and had a child with her resulting in the imposition of non-judicial punishment on 21 August 2015 for fraternization and adultery. As a result, Petitioner was order to show cause for retention at a Board of Inquiry (BOO on 16 December 2015. The 801 substantiated misconduct on 18 February 2016 and recommended Petitioner's separationfrom the Marine Corps with a General characterization of service. In the meantime, on 13 February 2017 the Physical Evaluation Board (PEB) found Petitioner unfit for left knee and left hip conditions. However, after consideration of Petitioner's letters of deficiencies and the fact he was found unfit for continued naval service by the PEB, Assistant Secretary of the Navy (Manpower and Reserve Affairs) (ASN (M&RA)) approved Petitioner's discharge from the Marine Corps on 22 May 2017 for misconduct. See enclosures (2) and (3). Petitioner was discharged on 29 June 2017 with a General characterization of service due to misconduct. c. On 30 August 2018, the Board denied Petitioner's original application requesting to change his narrative reason for separation to disability and grant him severance pay. In his application, Petitioner argued he was treated disparately from other service members. The Board concluded the Department of the Navy acted appropriately in separating Petitioner from the Marine Corps based on evidence that he admitted to the misconduct that formed the basis for the BOI finding of misconduct and recommendation for separation. In addition, the Board considered the seriousness of his misconduct and potential degradation of good order and discipline due to his misconduct. Ultimately, the Board concluded there was no evidence the Department of the Navy violated any regulations in discharging Petitioner for misconduct. The Board found no evidence Petitioner was treated disparately in any way that violated his due process rights based on a finding that facts and circumstances of misconduct cases are often different requiring military leadership to apply their judgment and discretion in applying discipline. In addit ion, the fact Petitioner's case was reviewed by multiple levels of leadership up through the ASN (M&RA) also convinced the Board the preponderance of the evidence did not support a finding that an error was made in discharging him for misconduct. Regarding his claim for a disability discharge, the Board determined he did not qualify for disability processing based on his misconduct processing. The Board noted that Petitioner's PEB status was reviewed by his chain of command up through the ASN (M&RA). See enclosure (4). d. Petitioner filed for reconsiderationwith this Board on 23 November 2020. As part of his reconsideration request to have his narrative reason for separation change to disability and be issued severance pay, he submitted General Accounting Office testimony before the Subcommittee on Military Personnel, Committee on Armed Services, House of Representatives titled "Military Justice, DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial Disparities" and a report from Protect Our Defenders titled "Racial Disparities in Military Justice, Finding of Substantial and Persistent Racial Disparities Within the United States Military Justice System." See enclosures (5) and (6). Both of these reports identified statistics that supported a finding that black servicemernbers were more likely to face investigatory and disciplinary action than other racial groups in the military. Relying on these two reports and his narrative of another officer who was allowed to continue his career despite committing similar misconduct, Petitioner requested reconsideration based on the argument that he was treated disparately for his misconduct based on his race. Since Petitioner' s administrative separation was originally adjudicated by the ASN (M&RA), this Board recommendation is forwarded for final decision. Upon review and consideration of all the evidence of record, the Board concluded the preponderance of the evidence does not support relief in Petitioner's case. The Board determined that Petitioner committed misconduct that supported his referral to a BOI and his separation from the Marine Corps. As a warrant officer, Petitioner engaged in a physical relationship with a married enlisted Marine that resulted in the birth of a child. The Board determined that Petitioner committed two violations of the Uniform Code of Military Justice that supported his eventual discharge from the Marine Corps. First, his relationship with the enlisted Marine was an orders violation that prohibits unduly familiar relationships between office rs and enlisted personnel. Second, the Board determined that Petitio ner engaged in adulterous behavior since the enlisted Marine was married. The Board relied on the fact a child was born as a result of the relationship to find that Petitioner engaged in both fraternization and adultery. In reviewing his misconduct, the Board concluded that Petitioner' s misconduct was sufficiently serious to merit his referral to a BOI and his eventual separation from the Marine Corps. Fraternization between officers and enlisted is prohibited due to the potential negative impact it has on good order and discipline within a command. Fraternization can potentially compromise the chain of command, create an appearance of favoritism and partiality, and under mine morale within the command. As a result, officers who engage in fraternization with enlisted personnel are consistently subjec t to disciplinary action. The Boardfelt that Petitioner' s fraternization was particularly aggravating to good order and discipline since the enlisted woman was married and eventually gave birth to his child. In the Board's opinion, Petitioner' s actions merited his non­ judicial punishment, referral to a BOI, and eventual discharge from the Marine Corps due to aggravating nature of his misconduct. While the Board acknowledged the potential existence of disparate treatment of service members based on their race, the Board found that Petitioner was treated appropriately based on the seriousness of his misconduct. The Board did not find Petitioner's arguments for relief based on disparate treatment from another officer or his co­ conspirator persuasive since the evidence clearly supports his administrative processing and discharge for misconduct. The Board concluded that if the Marine Corps failed to properly handle separate cases of similar misconduct, this action does not create sufficient mitigation to result in changing Petitioner' s misconduct based discharge. Rather, if true, it should result in the Marine Corps taking remedial action to prevent a similar occurrence in the future. Therefore, based on the Board finding that Petitioner was properly discharged for misconduct, the Board concluded he was not eligible for a disability discharge or severance pay. Despite the fact Petitioner was dual processed for misconduct and disability, disability regulations and policy state that misconduct based processing supersedes disability processing if the first General Officer in Petitioner's chain of command determined misconduct processing was appropriate. Since Petitioner' s dual processing status was considered by his chain of command up through the Assistant Secretary of the Navy, the Board determined Petitioner did not qualify for a disability discharge or severance pay based on his misconduct related discharge. RECOMMENDATION Deny Petitioner's application for relief. 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. The foregoing action of the Board is submitted for your review and action. Executive Director 1/26/2021 ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS) DECISION: Reviewed and Approved Board Recommendation (Deny Relief) 2/10/2021