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

 ex-SSgt, USMC
Docket No. MD00-00498

Applicant’s Request

The application for discharge review, received 000307, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a personal appearance discharge review before the board in the Washington National Capital Region.  The applicant listed a civilian counsel as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001201.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned both impropriety and inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character and basis for the discharge shall change to: HONORABLE / SECRETARIAL AUTHORITY / SPD Code JFF1, authority:  MARCORSEPMAN Par. 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The Administrative Discharge Board exceeded its authority in finding that Staff Sergeant E_ had sexually harassed Corporal W_ /D_. The Board agreed that it would not consider sexual harassment during its proceedings, with the concurrence of Counsel for Staff Sergeant E_ and the Board Recorder.  It then found, after this agreement, sexual harassment and utilized that finding for separation and discharge recommendations.  This is equivalent to a jury hearing a single charge of murder and deciding on its own while in deliberations to find the accused guilty of kidnapping in addition to murder.  That is not permissible and any judge would not approve that finding.

2.  The Administrative Discharge Board, by exceeding its authority concerning the issue of sexual harassment, tainted the proceeding because no argument or evidence was presented by the Defense Attorney or Staff Sergeant E_ concerning sexual harassment since, by agreement of all concerned, it was not to be considered by the Board.  In fairness to an accused in these matters, they are notified prior to the Board sitting on matters to be heard before the Board so a defense can be made to those offenses.  In this case, the matter was not an issue before the Board and no evidence was to be considered.  By making the finding of sexual harassment, the Board violated Staff Sergeant E_ rights and put him in a no-win situation.

3.  The Administrative Discharge Board, by exceeding its authority concerning the issue of sexual harassment, inexorably tied the issue of sexual harassment to the commission of serious offense (fraternization) finding in their decision to recommend separation and the type of separation.  Although the Commanding officer disapproved the finding of sexual harassment in his endorsement, it is impossible to "undo", what the Board did in violation of Staff Sergeant E_ rights.

4.  The Administrative Discharge Board Proceedings of Staff Sergeant E - for Commission of a Serious Offense, specifically fraternization, were unfair in that: 1) If this was a indeed a serious offense, why was Staff Sergeant E_ not taken to Non-Judicial Punishment (NJP) or a Court Martial prior to being referred to an administrative discharge board.  Referral to NJP would have allowed Staff Sergeant E_ to request a court-martial, which would have been much more fair due to rules of evidence being utilized and a higher standard of proof (beyond a reasonable doubt as opposed to a preponderance of the evidence).  Normally, this is the procedure used in a serious offense.  Referral to an administrative discharge board allows legally untrained officers and staff non-commissioned officers to operate in an arena with no rules of evidence with results like those before the BCNR (sic) in this case, where the Board did what they wanted in violation of Staff Sergeant E - rights: 2) the Board did not mention the host of evidence, through statements and testimony of the extra steps Staff Sergeant E_ always took to assist Marines. indeed, Corporal W_/D_ indicated that the motivation she received from Staff Sergeant E_ was what encouraged her to complete the program.  These extra steps to assist Marines were a part of every document and piece of evidence submitted to the Board.  Even if Staff Sergeant E _ had done the actions which Corporal W-/D complained of, specifically, attempted intercourse, it was consensual and apparently no intercourse occurred.  Based upon the numerous statements made by Corporal D_, which were inconsistent at best, her credibility was certainly at issue.  This matter would have best been served by another type of proceedings where rules of evidence and a higher standard of proof would have been in play, especially in light of the capricious rulings of the Administrative Discharge Board: 3) In light of the above stated facts and issues 1-3 Staff Sergeant E _ should be given the opportunity to return to active duty at his prior rank, or in the alternative, his discharge should be upgraded to Honorable or General Under Honorable Conditions, given the overall value of his service prior to the isolated incident alleged to have occurred and found by this out of control Administrative Discharge Board.

Documentation

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

Statement from applicant dated February 26, 2000
Copy of letter of appeal dated January 7, 1999
Copy of addendum to letter of appeal concerning discharge dated February 4, 1999
Copy of appeal of recommendation for discharge dated January 7, 1999
Copy of Commanding Officer's recommendation dated February 1, 1999
Copy of memorandum for the record dated January 26, 1999
Statement from attorney (2 copies)
Copy of applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		850503 - 881216	HON
		   USMC		881217 - 930730	HON
		   USMC		930731 - 970902	HON
	Inactive: USMCR(J)		850228 - 850502	COG

Period of Service Under Review:

Date of Enlistment:  970903		Date of Discharge:  990407

Length of Service (years, months, days):

	Active:    01  04  05
	Inactive:  None

Age at Entry:  29			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rank:  SSgt

Final Enlisted Performance Evaluation Averages:  Enlisted fitness reports were available to the Board for review.

Military Decorations:  NAM w/Combat “V”, (2 stars), CAR, GCM (3 stars), NDSM

Unit/Campaign/Service Awards:  SSDR with 2 Stars, SASM, KLM (K), KLM, NUC, MUA, Letter of Appreciation (5), MM (2), Certificate of Commendation.

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

981113:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, specifically fraternization.

981116:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27b, elected to appear before an Administrative Discharge Board.

981217:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to sexual harassment and misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990201:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was fraternization with
his subordinate student.  Commanding officer's comments (verbatim): Having conducted a detailed review of the record and after consultation with MCAS Iwakuni Staff Judge Advocate and the Equal Opportunity Advisor (enclosure 6), 1 recommend the following:
a.  Recommend disapproval of the sexual harassment finding, it is inappropriate finding because SSgt (applicant) and his counsel did not receive notice of defense based on that allegation.  The initial charge of sexual harassment was removed after it was agreed that it would not be a basis for separation.  The board then found that SSgt (applicant) sexually harassed Corporal D_, though that was not an allegation contained in the notification letter.
b.  Recommend approval of the misconduct due to commission of a serious offense pertaining to fraternization.  Based on the preponderance of the evidence, I concur with the board's finding that a factual basis establishes that he fraternized with his subordinate student.  The evidence clearly indicates a violation of the special trust and confidence given to SSgt (applicant) as a Staff Non-Commissioned Officer and as an instructor at the Corporal's course.

990309:	SJA review determined the case sufficient in law and fact.

990310:	GCMCA [Commanding General, 1st Marine Aircraft Wing] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990407 under other than honorable conditions for misconduct due to the commission of a serious offense (A and B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was neither proper nor equitable (D and E).

In the applicant’s first issue, the Board unanimously found the Administrative Discharge Board exceeded its original mandate by finding not only fraternization, but also the more serious charge of sexual harassment. Rather than remanding the case for another hearing on the sole issue of fraternization before a new, untainted Administrative Discharge Board (the appropriate remedy), the Command attempted to cure the defect by merely disapproving the finding of sexual harassment.  The Command made no attempt to reassess the sentence or type of discharge (an OTH), thereby irrevocably tainting the proceedings and prejudicing the ultimate findings.  In the Board’s view, this lack of administrative, procedural due process is neither proper, nor equitable.

The Board also noted that, by failing to refer the applicant’s case to Non-Judicial Punishment (NJP) prior to referral to an Administrative Discharge Board, the command effectively curtailed the applicant’s ability to contest procedural and evidentiary irregularities such as the subsequent, unexpected expansion of the charge sheet by the Administrative Discharge Board to include sexual harassment.  Similarly, the Board noted that serious charges, such as sexual harassment, are normally referred to NJP or Court-Martial to ensure that constitutional due process is scrupulously observed, thereby avoiding the impasse posed by the current case.

The Board also noted with interest and considered the manifold (and allegedly conflicting) roles that the Staff Judge Advocate played in the proceedings.  Again, the Board noted the appearance, if not reality, of a lack of procedural due process in the proceedings.

Finally, the Board noted with interest and considered the applicant’s submission of four other similarly situated cases of alleged fraternization/sexual misconduct aboard MCAS Iwakuni.  The administrative disposition of these four cases provided useful background to the Board in arriving at its equitable and proportional decision in the current case.

The Board is of the unanimous opinion that, due to the lack of fundamental fairness and procedural due process permeating this case, the command failed to observe even minimal administrative due process, thereby vitiating the findings in this case.  Additionally, due to the serious conflicting nature of the sworn statements adduced against the applicant, the Board has reservations as to the ultimate credibility of the female accuser.  Indeed, had the applicant been offered the rights afforded by Court-Martial, the testimony and evidence presented would likely not have been sufficient to support a finding of guilty.  Therefore, the Board grants full relief and changes the character of the discharge to Honorable by reason of Secretarial Authority, Code JFF1, by the authority of the Marine Corps Separation Manual, paragraph 6214.

The applicant is advised that should he desire to pursue his stated goal of reinstatement in the Marine Corps, a petition should be presented to the Board for the Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100.  Legal representation is strongly recommended in preparing a petition for reinstatement, back pay, and promotion eligibility.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit re-entry into the naval service or any other of the Armed Forces.  Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134.

The Board wishes to express its appreciation for the applicant’s many years of faithful service and wishes the applicant every success in the future.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until present). 

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

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
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023