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

  ex-Capt, USMC
Docket No. MD03-00848

Applicant’s Request

The application for discharge review was received on 20030407.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington Capital Region.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed the Board first conducts a record review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040312.  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 unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/UNACCEPTABLE CONDUCT, authority: MARCORSEPMAN Par. 4102 & SECNAVINST 1920.6A.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  MY DISCHARGE WAS INEQUITAB LE BECAUSE IT WAS BASED ON A SINGLE INCIDENT OF FRATERNIZATION IN OVER 6 YEARS OF LOYAL AND HONORABLE SERVICE AS A MARINE INFANTRY OFFICER WITH NO OTHER ADVERSE ACTION”

“2.  THE LIKELIHOOD OF REINSTATING ME TO ACTIVE DUTY AT MY PREVIOUS RANK WITH AN ACTIVE DUTY MARINE INFANTRY UNIT IN IRAQ, OR AT THE CHOOSING OF HQMC”

“3.  CONTACTING C_ W_, SECRETARY OF NAVY’S OFFICE, TO CORROBORATED MY CLAIMS AS AN HONROABLE AND PROFESSIONAL OFFICER OF MARINES”  (Please note:  Upon discharge from the Marine Corps in 1998, Col S_ was assigned to that office in the Pentagon.  It is unknown to me now whether he is still on active duty and/or his current duty station)”

Documentation

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

Applicant’s letter of explanation to BCNR dtd Mar 12, 2003
Applicant’s additional letter of explanation to NDRB dtd Mar 31, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   U.S. Navy Academy 	880706 - 920526	Accept Commission
	Inactive: None

Period of Service Under Review:

Date of Commission:  920527		Date of Discharge:  980706

Length of Service (years, months, days):

	Active:   06  01  10
	Inactive:  None

Age at Entry:  23			Years Contracted:  6

Education Level:  16		

Highest Rank:  Capt

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, AFEM, JMUA, HSM, Navy “E” Ribbon, NCM, MUC, NMCOSR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/UNACCEPTABLE CONDUCT, authority:  MARCORSEPMAN Par. 4102 & SECNAVINST 1920.6A.

Chronological Listing of Significant Service Events:

980202:	Applicant notified of rights under Article 31, UCMJ concerning allegation/charges of fraternization/adultery. 

980203:	Applicant’s statements.

980204:	Preliminary Inquiry concerning allegation of fraternization and adultery against Applicant.

980320:	Applicant notified of intention to conduct an Article 15, UCMJ hearing for violation of Article 133 of the UCMJ and advised of rights.

980415:	Applicant acknowledged his rights and understanding and elected to waive right to remain silent, elected to make a statement, and elected no lawyer present during the interview.

980417:	Applicant notified of Article 15, UCMJ hearing and accepted punishment under Article 15, UCMJ in lieu of trial by court-martial.

980417:	NJP for violation of UCMJ, Article 133:  During the period of 8 Nov 97 to 3 Feb 98, established and maintained an unlawful, unduly familiar relationship with LCpl C_ G_-H_, USMC; committed adultery with LCpl C_ G_-H_; and impeded an investigation by making a false statement to the investigating officers.  Such acts are conduct unbecoming an officer and gentlemen and have brought disgrace to the Armed Forces. 
Awarded forfeiture of $1500.00 base pay per month for 2 months, Punitive Letter of Reprimand.  Not appealed.

980417:	Punitive Letter of Reprimand issued to Applicant.

980417:	Acknowledged the Letter of Reprimand.

980417:	Applicant requested resignation in lieu of further processing for administrative separation.

980417:	Commander, U.S. Marine Corps Forces, Atlantic, advised the Commandant, U.S. Marine Corps of Applicant’s NJP and recommended the Applicant’s letter of resignation be accepted and the characterization of service be under other than honorable conditions, further recommended that Applicant not be required to appear before a Board of Inquiry, unless he withdraws his resignation request.

[SEPARATION AUTHORITY NOT CONTAINED IN SERVICE RECORD]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980706 under other than honorable conditions by reason of unacceptable conduct (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).

Issues 1-3.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Marine.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) for adultery and fraternization and initially providing false statements about his actions during a preliminary inquiry.      

The NDRB has no authority to change reenlistment codes or make recommendations to permit reentry or reinstatement into the Naval Service or any other branch of the Armed Forces.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of service in question.  No such error or inequity is evident during the Applicant’service.  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.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Chapter 4, Paragraph 4102 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 Aug 1995), PROCESSING FOR SEPARATION.

B.  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.

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