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

ex-1stLT, USMC
Docket No. MD99-01118

Applicant’s Request

The application for discharge review, received 990817, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000519.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity in the characterization of the applicant’s service.  The Board’s vote was 4 to 1 that the character of the discharge shall change.  The discharge shall change to: HONORABLE/SECRETARIAL AUTHORITY, authority:  SECNAVINST 1920.6A.

The NDRB did note an administrative error on the original DD Form 214.  Block 25, Separation Authority, should read:  “SECNAVINST 1920.6A” vice “MARCORSEPMAN PAR 5005.1”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Discharge was inequitable because it was based on one isolated incident in 4 years 2 mos 4 days of service with no other adverse action.

2.  My discharge was improper because it was based on misconduct evidenced by, "commission of a military offense which, if prosecuted under the UCMJ, could be punished by confinement of 6 months or more".

3.  My discharge was improper because the fact that my unduly familiar relationship involved a woman in a separate chain of command was not taken into account.

4.  My discharge was improper because it was based on a sexual relationship for which there was absolutely no evidence shown or statements made.

5.  My discharge was improper because it was based on a close relationship which the evidence shows did not exist.

6.  My Discharge was improper because it was based on findings of Fact which were either totally fabricated or inaccurate.

7.  My discharge was improper because it arose from Non Judicial Punishment I accepted on the basis that a sexual relationship was not present in the charges.  If a sexual relationship had been alleged, I would have refused NJP, thereby precluding an administrative separation based on unfounded charges.

8.  My discharge was improper because it was based on false statements which I attempted to have removed prior to review of the case by Headquarters Marine Corps.

9.  My discharge was inequitable due to the command climate which exists at Naval Air Station Kingsville, Texas.

10.  My discharge was inequitable due to the fact it came about through selective prosecution.

11.   My discharge was inequitable because it was inconsistent with the recommendations given by my chain of command.

12.  My discharge was inequitable because no weight was given to the fact that I turned myself in, when my unduly familiar relationship would easily have gone undiscovered.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Applicant's letter supporting/explaining all listed Issues (6 pages)
Letter of Support from M_ R. K_, dtd  Apr 5, 1999 (with copy of Victim/Witness' Statements) (12 pages)
NCIS Affidavit for Search Authorization dtd 8 Jan 1999
Preliminary Inquiry Officer's report dtd 15 Jan 1999 (18 pages)
Administrative Discharge Authorization (3 pages)
Punitive Letter of Reprimand (3 pages)
Applicant's Fitness Report (From 19981118 to 19990214) (5 pages)
Notification of Recommendation for Discharge dtd Apr 14, 1999 (2 pages)
Forwarding of Preliminary Investigation from CO, Trng Air Wing TWO to CO, Mar Air Trng Supp Gru dtd 26 Jan 99
Office Hour Guide dtd 17 Feb 99
Report of NJP w/end dtd 17 Feb 99
Notification of Recommendation for Discharge from CMC dtd 31 Mar 99
Acknowledgement of Notification of Separation Recommendation dtd 11 May 99
Permanent change of Station Orders dtd 7 Dec 98
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:    None
	Inactive:   USMCR(ROTC)		910818 - 950511	Commissioned

Period of Service Under Review:

Date of Appointment:  950512		Date of Discharge:  990716

Length of Service (years, months, days):

	Active:  04  02  05
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  16			AFQT:  N/A

Highest Grade:  1STLT

Final Officer Performance Evaluation Averages:  All officer performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/DIS INVOL - DETERMINATION OF SERVICE SECRETARY, authority: MARCORSEPMAN par 5005.1.

Chronological Listing of Significant Service Events:

990115:	Preliminary Inquiry Officer forwarded to the Command, Trng Air Wing TWO the result of the Preliminary Investigation.

990126:	CO, Trng Air Wing TWO forwarded the Preliminary Investigation concerning the applicant to the CO, Marine Air Trng Support Group, recommending that the case be disposed with some form of Non-Judicial Punishment and that the applicant be allowed to continue his aviation career.

990217:	NJP for violation of UCMJ, Article 134: fraternization - did, at approximately between 12 and 13 Dec 98, knowingly fraternized with Airman G_ A. S_, an enlisted person, on terms of military equality, to wit:  having personal relations, i.e. dating, having her as a guest at parties in his apartment, in violation of the custom of the Naval Service of the United States, that officers shall not fraternize with enlisted persons on terms of military equality.
	Award:  Punitive Letter of Reprimand, restriction for 30 days suspended for 2 months.

990217:	Applicant issued a Punitive Letter of Reprimand 

990217:	Applicant's NJP was reported to CMC with a recommendation that applicant be required to show cause for retention in the Marine Corps at a Board of Inquiry.  The command further advised that the applicant has not submitted a request for resignation in lieu of administrative separation processing.

990317:	CNAT endorsed the CO, MATSG letter of 17 Feb 99 to the CMC, concurring in the recommendation that the Applicant not be required to show cause for retention in the Marine Corps.

990331:	CMC, designated as the Show Cause Authority for the Marine Corps, advised applicant that it was determined that there was sufficient evidence of misconduct and substandard performance of duty to recommend separation for cause and advised the applicant that he intended to recommend to the SECNAV that applicant be separation with a General (Under Honorable Condition) characterization of service.  Applicant was directed to acknowledge receipt of this notification and to designate election of rights.

990414:	Applicant acknowledged receipt of the Notification of Recommendation for Administrative Discharge by reason of misconduct and substandard performance and characterization of service as General, as recommended by the Show Cause authority and further requested to be retained on active duty.  Applicant objected to any process that results in separation from the Marine Corps with a characterization of service less than Honorable. 

990511:	Commanding Officer, MATSG, recommended that the Show Cause Authority convene and Administrative Separation Board, stating: "While the applicant's Navy's Chain of command supports his retention, "I do not", and recommended convening a board to appropriately characterize the applicant's discharge.
 
990615:	CMC recommended to the SECNAV that applicant be discharged with a General (under honorable conditions).  The specific bases for separation are:  a. Failure to demonstrate acceptable qualities of leadership required of an officer in the member's grade and; b Commission of a military or civilian offense that, if prosecuted under the UCMJ, would be punished by confinement for 6 months or more, and any other conduct that, if prosecuted under the UCMJ, would require specific intent for conviction.
990623:	SECNAV approved and directed the applicant's discharge with a General (Under Honorable Condition).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990716 with a general (under honorable conditions) by reason of discharge involuntary - determination of Service Secretary (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board, with a vote of 4 to 1, found that the discharge was not equitable (C and D).

The Board looked at the facts of this case and determined that this was the applicant’s first offense, and that he had an otherwise good record.   The Board firmly believes that the discharge was too severe for the offense, and under current policy, would warrant an honorable discharge.  Relief granted. 
Pertinent Regulation/Law (at time of discharge)

A.  The Secretary of the Navy Instruction 1920.6A of 21 Nov 1983 (Administrative Separation of Officers), 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 15 Oct 81.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023