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

  ex-LCpl, USMC
Docket No. MD03-00854

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 general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant listed civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040224.  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/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because the incident(s) upon which it is based has been mitigated by 12 years of overall exemplary military service.
My discharge was inequitable because the incident(s) upon which it is based has been mitigated by subsequent good conduct.
My discharge should be upgraded because Appellant has taken positive steps since separation and remained law abiding.
My discharge was inequitable because the Appellant has always had a propensity for honesty and truthfulness.  Appellant's character trait- should be distinguished from those individuals who do not demonstrate such maturity and remorse.
My discharge was inequitable because the impaneled Board members did not follow Military Regulations and protocol in that the two enlisted personnel were excused and never replaced.
My discharge should be upgraded because I have made tremendous strives toward a good employment record and as a contributing member of society.  My post-service conduct, as well as my 12 years of military service, were exemplary.”

Additional issues submitted by Applicant’s counsel/representative (Law Offices of Edmunds & Sumner):

2.  “APPLICATION FOR DISCHARGE UPGRADE

COMES NOW, P_ R_ (applicant), by and through the undersigned counsel and respectfully requests this Honorable Board to upgrade his Other Than Honorable Discharge and as grounds in support thereof states the following:

Statement of the Facts

L.Cpl. P_ R_ (applicant) enlisted in the Marine Corps on April 23, 1986 and entered active duty on July 11, 1986.  (DD Form 4/1, 214) L.Cpl. R_ (applicant) originally enlisted in the armed forces to assist him in securing employment in either a civilian law enforcement agency or a related career in the armed services.  Specifically, he chose the Marine Corps because of the mental and physical challenges the Marine Corps offered.

During his years of service L.Cpl. R_ (applicant) excelled.  During his training, he was selected as a 2nd squad leader in his platoon and went on to graduate maintaining the squad leader position.  He graduated from boot camp on July 11, 1986 with a rank of PFC.  He then went on to attend the Aviation Supply School in Meridian, MS.  He graduated from the supply school in September 1986 and was meritoriously promoted to the rank of L.Cpl. for being in the top three of his graduating class.  His first duty station was at MCAS Iwakuni, Japan.  After serving a one year tour, he was transferred to MCAS El Toro, CA, and was promoted to a rank of Cpl.  He was then transferred to the Commander Naval Air Force Pacific Fleet at NAS North Island on September, 1990.  He was promoted to the rank of SGT on January 1, 1991.  He detached from CNAP in June, 1995 and was again transferred to MCAS Iwakuni, Japan.  Serving a one year tour with MALS- 12, he received his first Navy Achievement Medal for outstanding performances and being in charge of Aviation Supply portion of 1996 Cobra Gold exercises in Thailand.  He joined MAG-46 in July, 1996 after his overseas tour where he received his second Navy Achievement Medal for an outstanding performance as a Hi-Pri NCOIC.  He was promoted to the rank of SSGT in October, 1997.  During the course of his career, L.Cpl R_ (applicant) received the Navy Achievement Medal, the Good Conduct Medal, the National Defense Medal and Sea Service Deployment Ribbon.  He was accepted for a secondary MOS of 8611 (Interpreter) for two languages, Lao and Thai.  (Please refer to Exhibit 1)

During the course of his Marine Corps career, he took pride in completing all required PME, including completing the War Fighting Skills Course.  (Please refer to Exhibit 2) He participated, led and enthusiastically volunteered for many community and civic programs.  He further took advantage of the Marine Corps Tuition Assistance Program to continue his college education on his liberty hours to pursue a bachelor degree in Mechanical Engineering.  (Please refer to Exhibit 3)

In late April, 1998, L.Cpl. R_ (applicant) was informed that he was being charged with Misconduct due to Commission of a Serious Offense, that being the commission of adultery.  He was informed that a friend of his, who was the wife of a Marine Corps Officer, had accused him of being in a sexual relationship with her for seven months.  L.Cpl. R_ (applicant) adamantly denies this happening.  He states that they maintained a friendship through their association of a group
of friends at the gym where he worked out consistently, and where she was an aerobics instructor.  He states that during their friendship, she would confide in him about various problems which she was having with her husband.  At one time, he took her to get an abortion when she requested his help.  This abortion, she states, was not her husband’s child and L.Cpl. R_ (applicant) is not aware of who the baby’s father was.  Additionally, L.Cpl. R_ (applicant) assisted her on a night when she was too intoxicated to drive and took her to a hotel room.  Another Marine was also accused of having a sexual relationship with the same woman.  L.Cpl. R_ (applicant) believes that her marriage was in severe jeopardy and she concocted the stories of the two affairs in order to place blame elsewhere and to attempt to save her marriage.  L.Cpl. R_ (applicant) is married with two children and has the utmost respect for his family and the institution of marriage, as well as the rules and regulations of the Marine Corps.

At the convened Administrative Separations Board, L.Cpl. R_ (applicant) submitted and had over 30 witnesses present to testify on his good moral character, and his character as a Marine.  (Please refer to Exhibit 4) Due to circumstances beyond his control, the Board of 3 officers and 2 enlisted personnel, was reduced to 3 officers at the time of decision.  As a result, L.Cpl. R_'s (applicant’ s) Counsel submitted two Letters of Legal Deficiency in the Administrative Separation Board in July, 1998.  (Please refer to Exhibit 5) On June 17, 1998, the Administrative Separations Board found L.Cpl. R_ (applicant) guilty and recommended a discharge under Other than Honorable Conditions, with a reduction in rank from S.Sgt.  To L.Cpl.

Since his discharge, L.Cpl. R_ (applicant) has found work as a logistic element manager with the U.S. Navy as a civil servant at NAS North Island.

Statement of Material Contentions and Argument

Based on the foregoing facts, L.Cpl. R_ (applicant) requests a discharge upgrade because the Other than Honorable Discharge is based on conduct that is mitigated by overall good service.  During L.Cpl. R_ (Applicant's) service history, he received outstanding conduct and efficiency ratings.  He was cited as being an exemplary Marine and scored above average in all of his performance evaluations.

Another factor that should be considered by the Board in assessing L.Cpl. R_ (applicant)’s service history are the numerous awards and decorations that he received during his service.  As stated before, L.Cpl. R_ (applicant) received the Navy Achievement Medal, the Good Conduct Medal, the National Defense Medal and Sea Service Deployment Ribbon.

L.Cpl. R_'s (Applicant's) prior honorable service is also a factor that should be considered by the Board.  His service from his entry date in 1986 until his discharge was honorable and contained no disciplinary documentation.  His grades and the promotion to S.Sgt. demonstrate his outstanding productivity during that period of service.

L.Cpl. R_'s (Applicant's) post-service conduct indicates that he is a person that helped someone, possibly too much, and was naive as to the intentions of the person he was helping, but not a malicious person and whose overall character outweighs the in-service conduct.  He has excelled at his current job and has tremendous support from his supervisors and co-workers.  (Please refer to Exhibit 6)

In conclusion, the discharge is inequitable because L.Cpl. R_ (applicant) has adamantly denied the occurrence of the offense and there are several mitigating factors.  His proficiency-conduct ratings, awards and decorations, twelve year period of honorable service and his post service conduct.  Also, according to a recent Department of Defense memorandum, discharge upgrades are being awarded to members of the inactive reserve who were awarded a less than honorable discharge for civilian conduct which was not service related or impairing conduct that is similar to L.Cpl R_'s (Applicant's).

WHEREFORE L.Cpl R_ (applicant) respectfully requests a discharge upgrade and an upgraded re-entry code.”

Documentation

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

Copy of DD Form 214
123 Pages from Applicant’s service record
Certificate of completion of dBase III+ dated May 7, 1992
        Certificate of completion of  Harvard Graphics 3.0 dated January 7, 1992
        Thank you letter from San Diego County Special Olympics Tournament dated     
        September 6-7, 1997
        National University Certificate of Leadership dated November 19, 1992
        Letter of recommendation dated February 20, 2003
        Character statement dated February 20, 2003
        Character statement dated February 24, 2003
        Character statement dated February 20, 2003
        Character statement dated February 20, 2003
        Character statement dated February 18, 2003
        Letter of recommendation dated February 18, 2003
        Letter of recommendation dated February 20, 2003
        Letter of recommendation dated February 18, 2003
        Letter of recommendation dated February 20, 2003
        Declaration of G_ W. D_

PART II - SUMMARY OF SERVICE

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

	Active:    USMC	860423 – 960404	HON
	Inactive: USMCR(J)	860418 - 860422	COG

Period of Service Under Review:

Date of Enlistment:  960405		Date of Discharge:  980928

Length of Service (years, months, days):

	Active:    02  05  24
	Inactive:  None

Age at Entry:  20			Years Contracted:  3

Education Level:  12			AFQT:  38

Highest Rank:  SSgt

Final Enlisted Performance Evaluation Averages (number of marks):

Fitness Reports were available for review through 971231

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (w/*), LoA (3), GCM (4), NDSM, LoC (2), NAM (2)

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:

Undated:	Commanding Officer’s statement surrounding the Applicant’s alleged adulterous affair.

980507:	Sworn statement of J_ M_ concerning her adulterous affair with the Applicant.

980507:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by adultery.

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

980612:	Second sworn statement of J_ M_ concerning her adulterous affair with the Applicant.

980616:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  

980617:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

980901:	SJA review determined the case sufficient in law and fact.

980908:	GCMCA [Commander, Marine Forces Reserve] 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 19980928 under other than honorable conditions for misconduct due to the commission of a serious offense (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 and 2.  Despite the Applicant’s previous outstanding service, the Board found that the specific circumstances of the Applicant’s offense warranted separation under other than honorable conditions.  The Applicant’s denial of the offense and professed reputation for being honest and truthful does not refute the presumption of regularity in this case.  The Board found no reason that the Applicant’s alleged naivety and eagerness to help others should mitigate his misconduct.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

An administrative discharge board found that the preponderance of the evidence supported the allegations of misconduct and that the offense warranted separation under other than honorable conditions.  The NDRB found no impropriety or inequity regarding the Applicant’s administrative discharge board proceedings.  The administrative discharge board was never composed of less than three members.  There was no requirement that any member be enlisted.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review.  The discharge was proper and equitable.  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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  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.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until present). 

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 134, adultery.

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