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

  ex-Capt, USMC
Docket No. MD03-00058

Applicant’s Request

The application for discharge review, received 20020930, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review.  The Applicant did not designate a representative on the DD Form 293.  On 20030220 the Naval Discharge Review Board (NDRB) suggested the Applicant obtain counsel/representative prior to his discharge review; Applicant did not respond.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20030903.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was four to one that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/ Conduct Triable by court-martial, authority:  SECNAVINST 1920.6A.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  ISSUE ONE
My discharge was improper because I was awarded an Honorable Discharge Certificate. Document 1; paragraph 4. Sub-paragraph K (2) and enclosure (3) of Document 1 (listed but unavailable).

ISSUE TWO
My discharge was improper and inequitable because I was prosecuted by two superior officers (Majors) and assigned one defense counsel subordinate in rank (First Lieutenant) to myself.
Document 2: page 4.

ISSUE THREE
My discharge was improper and inequitable because my defense counsel was not allowed reasonable time to prepare a defense case (less than 10 days).
(A)	I September 198 7: Charge Sheet.  Document 3, Paragraph 11 (E).
(B)	II September 198 7: Article 32 Hearing.  Document 2, line (1) and (2).

ISSUE FOUR
My discharge was improper because DD Form 457 (original investigative report) was not submitted to Headquarters as required
Document 4; paragraph (3); line (1) and (2)
And verified by lack of enclosure and lack of received copies
Document 5; enclosures and paragraph (4); lines (1) through (3).

ISSUE FIVE
My discharge was improper because I was falsely charged for entering into financial transactions with subordinates, when in fact it was a civilian, Mr. M_ S. K_, who was properly authorized and licensed by both the State of North Carolina and MCAS Cherry Point, North Carolina.
Document 3; paragraph (10); and Document 6

ISSUE SIX
My discharge was inequitable because it was based upon false charges (see Issue Five) and did not reflect eight (8) years of exemplary performance as demonstrated by:
Fitness reports (Document 7);
Three (3) Certificates of Commendation;
Letter of Appreciation;
Expeditionary Medal;
The Sea Service Deployment Ribbon (Document 8; paragraph (13));
Military Education (Document 9).

Documentation

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

CMC letter dtd July 28, 1987
Article 32 Minutes (Page 1) dtd Sept 11, 1987
Charge Sheet dtd Sept 1, 1987
Order Appointing Formal Pretrial Investigation: United States v. Captain T_ P. W_, (Applicant), USMC
Personal Statement of Mr. M_ S. K_, dtd Sept 7, 2002
Master Brief Sheet
Copy of DD Form 214 
Military and Civilian Occupational Specialties, Education Course, Technical Training and Tests completed (NAVMAC 118) Service Record Book Page
Letter from Representative J_ W_, dtd Dec 19, 2001
Letter from Representative J_ W_, dtd Sept 10, 2001
Letter of recommendation from P_ C. H_, MD, dtd Aug 25, 2003
Letter of recommendation from Principal J_ F. C_, dtd Aug 25, 2003
Letter of recommendation from J_ R_

The Applicant presented plaques and photographs for the Board to consider.  Photocopies of these items were not submitted by the Applicant.

PART II - SUMMARY OF SERVICE

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

	Inactive:   USMCR (C)	751203 - 760605	To report OCS
	Active:     USMCR (OC)	760606 - 790519	Commission USMCR
Officer (USMCR)	790520 – 820708	HON – To accept 
appointment with Regular U.S. Marine Corps.

Period of Service Under Review:

Date of Appointment to Regular USMC:  820709		Date of Discharge:  870930

Length of Service (years, months, days):

	Active:    05  02  22
	Inactive:  None

Age at Entry:  24			Years Contracted:  2

Education Level:  18	

Highest Rank:  Capt

Final Officer Performance Evaluation Averages:  Officer performance reports were available to the Board for review thru 861031.

Military Decorations:  None

Unit/Campaign/Service Awards:  MCEM, SSDR, CoC(3), LoA, CoS, Pistol Marksman Badge, Rifle Expert Badge

Days of Unauthorized Absence:  None

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

UNDER CONDITIONS OTHER THAN HONORABLE /Conduct Triable by court-martial, authority:  SECNAVINST 1920.6A.

Chronological Listing of Significant Service Events:

810923:	Applicant requested augmentation into the Regular Marine Corps and agreed to remain on active duty for a minimum period of 2 years.

820621:	Commandant U. S. Marine Corps approved Applicant’s request.

820708:	Applicant discharge USMCR to accept appointment in the regular U.S. Marine Corps, having served 3 years, 1 month, 19 days active duty and received an “honorable” characterization of service.

820709:	Accepted appointment to the Regular U.S. Marine Corps.

870728:	Commandant of the Marine Corps accepted Applicant’s request for resignation and tendered a Marine Corps Reserve commission.  Honorable discharge from active duty was directed effective 2400 on 1 November 87 and assigned to inactive duty in the Marine Corps Reserve. 

870917:	Applicant’s request for resignation in lieu of trial by court-martial.  [EXTRACTED FROM COMMANDANT, USMC, LETTER OF 24 SEP 87].  

870924:	Commandant recommended to the Secretary of the Navy approval of Applicant’s request for separation in lieu of trial by court-martial and recommended separation with a characterization of service as under other than honorable.  Applicant charged with having business relationships with subordinates in his chain of command, engaging in commercial business in a military work space, and making a false statement to a Master Sergeant.  Applicant’s immediate discharge is in the best interests of the naval service.

870928:	Assistant Secretary of the Navy (M&RA) approved Applicant’s discharge, as requested.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19870930 under conditions other than honorable in lieu of trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

Issue 1.  The Board found no indication the Applicant was improperly denied an honorable discharge.  Separation for misconduct takes precedence over separation for other reasons.  The charges of misconduct against the Applicant in September 1987, which occurred after his approval for resignation, but prior to his separation date, negated the earlier intent to separate the Applicant with an honorable discharge.  Relief denied.

Issues 2 and 3.  The Board found no inequity or impropriety in the processing of the Applicant’s charges of misconduct by any member of the Staff Judge Advocate’s (SJA) office.  While the Applicant may feel he was not properly represented and that his case was handled in a manner that did not allow him to prepare a reasonable defense, the Board found that the evidence available for review, including the timeline with which his case was handled by the SJA, did not constitute an impropriety or inequity.  Relief denied.

Issue 4.  The Applicant failed to overturn the presumption of regularity on this issue.  The Board found no impropriety in the Applicant’s allegations that his DD Form 457 was not submitted properly up the chain of command or that he did not receive copies of documents that he was required to receive in his processing for administrative separation.  Relief denied.

Issues 5 and 6.   Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  The Applicant failed to overturn the presumption of regularity on these issues with his allegation that he was falsely charged.  Despite the positive aspects of the Applicant’s record, the NDRB found the Applicant’s service record and documentation provided devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  The Applicant requested separation in lieu of trial at a General Court-Martial.  In the Applicant’s request, he admitted guilt to the charges of misconduct against him and certified a complete understanding of the negative consequences of his request.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 21 Nov 1983 until 12 Dec 1999 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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 133, conduct unbecoming an officer.

C.  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.  

D.  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.

E.  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