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

  ex-2ndLT, USMCR
Docket No. MD03-00888

Applicant’s Request

The application for discharge review was received on 20030409.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing in the Washington National Capital Region.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040401.  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: GENERAL (UNDER HONORABLE CONDITIONS)/UNACCEPTABLE CONDUCT, authority: MARCORSEPMAN Par. 4104 and SECNAVINST 1920.6B.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Issues to address:

One accusation that was never proven and was based on circumstantial evidence ended my career in the Marine Corps.  Due to an outstanding service record throughout my time in the Marine Corps, I ask that my case be reviewed thoroughly.  I request an upgrade to an honorable discharge and reinstatement with current time and grade and flight status.

1.  I requested to speak to my Commanding Officer on several occasions throughout the investigation, but was never afforded the opportunity to do so.

2.  I was coached by my Command’s JAG Officer on what to say and to cooperate with the Command on the evidence against another Lt.  In return, he said my Commanding Officer would give me a letter of reprimand and I would resume my career.  Consequently, the charges were dropped against me, then a week or so later I was given paperwork to process me for an administrative separation.

3.  The lack of time due to a Change of Command at TBS played a crucial but damaging role in my defense.

(Please see attachment for further statement and details)”

Documentation

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

Applicant’s Official Test Results, Basic School Quantico dtd Jun 5, 2001
Applicant’s Age Waiver for Naval Aviation Program dtd Oct 19, 2000
Applicant’s further statement/details concerning discharge (undated) (3 pages)
Applicant’s Coached Statement (undated) (2 pages)
Applicant’s Official Request for Resignation for Cause dtd Jun 12, 2001
Applicant’s Rebuttal to Notification Requesting an Honorable Discharge dtd Jun 12, 2001 (4 pages)
K_ and Applicant’s (P_) test pages
Applicant’s Statement dtd Apr 20, 2001
CO, The Basic School, ltr to Trial Counsel, dtd May 1, 2001
Applicant’s Statement dtd May 2, 2001
Applicant Administrative Discharge Notification dtd May 30, 2001
Applicant’s Test Answer Page (2 pages)
Applicant’s photo
Applicant’s autobiography dtd May 22, 2000
Applicant’s Counseling Chronology
Applicant’s Student Totals Report, The Basic School dtd Nov 28, 2000
Applicant’s Leadership Performance Worksheet/command evaluations/academic counseling (33 pages)
HQMC MOS Recommendation Roster dtd Oct 17, 2000
31 Character Reference letters from Marine Corps officers  
Applicant’s Verification of Military Experience and Training dtd Apr 1, 2001 (12 pages)
Congressional correspondence (3 pages)
Letter from Applicant to congressman
Letter from HQMC, dtd Jan 9, 2004

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		980323 - 000406	HON (To accept commission)
	Inactive: USMCR(J)		980304 - 980322	COG

Period of Service Under Review:

Date of Commission:  000407		Date of Discharge:  020405

Length of Service (years, months, days):

	Active:  01  11  28
	Inactive:  None

Age at Entry:  28			

Education Level:  16			AFQT:  80

Highest Rank:  2ndLT

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

Military Decorations:  None

Unit/Campaign/Service Awards:  N&MCAM, CoC, MM, Rifle Expert Badge, Pistol Expert Badge

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/UNACCEPTABLE CONDUCT,  authority:  MARCORSEPMAN Par. 4104 & SECNAVINST 1920.6B.

Chronological Listing of Significant Service Events:

001117:	Applicant was alleged to have cheated on Leadership and Administration exam and the command ordered an investigation.  Investigating officer concluded that the officers cheated.  [Extracted from the Commandant of the Marine Corps’ letter to the Secretary of the Navy, dated February 11, 2002].  

001129:	Applicant was offered nonjudicial punishment, but refused and the case was forwarded to an Article 32 Investigation where the investigating officer determined that there was sufficient evidence to support charges of false official statement and conduct unbecoming in violation of Articles 107 and 133 of the UCMJ and refer the case to a general court-martial.  The investigating officer recommended disposing of the offenses at NJP; and if Applicant refused NJP, the investigating officer further recommended that a Board of Inquiry be convened.  [Extracted from the Commandant of the Marine Corps’ letter to the Secretary of the Navy, dated February 11, 2002].

010530:	Applicant notified of intended recommendation for discharge with a general under honorable conditions by reason of substandard performance of duty and misconduct.  Specific reasons are (1) failing to demonstrate the acceptable qualities of a leader, (2) failure to satisfactorily complete a course of instruction, and (3) commission of a military or civilian offense(s) punishable by confinement of six months or more.  Specifically, cheating on the Leadership and Administration exam, cheating on the Amphibious Operations exam, and violating a General Order by failing to report misconduct.  [Provided by the Applicant.]

010612:	Applicant voluntarily tendered his qualified resignation in lieu of processing for administrative separation for cause, and further requested an honorable discharge.  [Provided by the Applicant.]

010612:	Applicant’s rebuttal to the administrative separation notification and request for an honorable discharge.  [Provided by the Applicant.]

010717:	Commanding officer recommended approval of Applicant’s request for resignation, but recommended discharge with a general (under honorable conditions) due to substandard performance of duty and misconduct.  

010910:	Commanding General, Marine Corps Education Command, recommended Applicant’s qualified resignation request be accepted, and that he be separated from the Marine Corps with a General (Under Honorable Conditions); and if resignation is not accepted, Applicant be required to show cause for retention.  

011015:	Commanding General, Training and Education Command, recommended Applicant’s qualified resignation request be accepted, and that he be separated from the Marine Corps with a General (Under Honorable Conditions) characterization of service.

011214:	Commanding General, Marine Corps Combat Development Command, recommended Applicant’s qualified resignation request be accepted, and that he be separated from the Marine Corps with a General (Under Honorable Conditions) characterization of service.

020211:	Commandant of the Marine Corps recommended to the Assistant Secretary of the Navy (ASN) acceptance of Applicant’s qualified resignation and that he be involuntary discharged with a General (Under Honorable Conditions) by reason of unacceptable conduct. 

020228:	ASN (M&RA) approved Applicant's discharge, as requested.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020405 with a General (Under Honorable Conditions) due to 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 honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by his unacceptable conduct while a student at TBS.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.  Relief denied.

The statements and documentation provided by the Applicant do not refute the presumption of regularity in this case.  The Board found no indication in the record that the Applicant was improperly or inequitably denied any right or process regarding his administrative separation.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  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’s 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 4104 of the Marine Corps Separation and Retirement Manual, (MCO p1900.16E) effective 18 August 1995 until present, RETIREMENT OR RESIGNATION.

B.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 13 Dec 1999 until Present 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 14 Mar 97.

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