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

 ex-CAPT, USMC 
Docket No. MD03-01127

Applicant’s Request

The application for discharge review was received on 20030612.  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 review.  The Applicant designated civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423.  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/Discharge Involuntary – Determination of Service Secretary, authority: SECNAVINST 1960.2B & MARCORSEPMAN Par. 4102.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Issues submitted by Applicant’s counsel/representative (CIVILIAN COUNSEL):

1.  “The Petitioner submits that he has been unjustly subjected to the imposition of an Other than Honorable Discharge by the United States Marine Corps and respectfully requests that this Honorable Board set aside said discharge and upgrade his discharge characterization to General (Under Honorable Conditions).”

Documentation

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

Findings of Physical Evaluation Board dtd Oct 19, 1998
Report Chit dtd Jul 14, 1998
Punitive Letter of Reprimand dtd Jul 16, 1998
Appeal from Non-Judicial Punishment dtd Jul 22, 1998
Request for Resignation for Cause dtd Jan 20, 1999
Denial of Request for Resignation dtd Feb 12, 1999
Waiver of Board of Inquiry dtd Mar 5, 1999
Copy of DD Form 214
Letter-Discharge from the USMC dtd May 4, 1999
2nd Letter-Discharge from USMC dtd May 4, 1999 with DD Form 214
Set Aside of NJP ICO SK1 J_ R. M_ dtd Mar 3, 1999
Letter from Capt T_ dtd Feb 22, 1999
Letter from G_ D. M_ dtd Mar 11, 1999
Recommendation for Admin Sep dtd Apr 15, 1998

PART II - SUMMARY OF SERVICE

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

	Inactive:   None
	Active:     USMCR(OCAN)	930628 - 931209	To accept commission

Period of Service Under Review:

Date of Commission:  931210	Date of Discharge:  990512

Length of Service (years, months, days):

	Active:  05  05  03
	Inactive:  None

Age at Entry:  27	

Education Level:  16	

Highest Rank:  CAPT

Final Officer Performance Evaluation Averages:  Officer performance reports were available to the Board for review thru 19980804

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Marksman Rifle Badge, Marksman Pistol Badge

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance, as corrected with issuance of DD Form 215):

UNDER OTHER THAN HONORABLE CONDITIONS/Discharge Involuntary – Determination of Service Secretary, authority:  SECNAVINST 1920.6B & MARCORSEPMAN Par. 4102.

Chronological Listing of Significant Service Events:

980716:	NJP for violation of UCMJ, Article 92:  In the vicinity of Virginia Beach, VA and Cleveland, OH on diverse occasions between Dec 97 and 10 Jul 98 violate a lawful order, to wit:  OPNAVINST 5370.2A by wrongfully engaging in an unduly familiar personal relationship not respecting differences in rank and grade with an enlisted member of his unit, to wit:  writing letters to, inappropriately vacationing with and engaging in a sexual relationship with Master-at-Arms “frocked” First Class J_ R. M_, U.S. Navy. 
	Violation of UCMJ, Article 133:  In the vicinity of Virginia Beach, VA and Cleveland, OH on diverse occasions between Dec 97 and 10 Jul 98, wrongfully and dishonorably have a sexual relationship with said Master-at-Arms “frocked” First Class J_ R. M_, USN, an enlisted married woman.
	Violation of UCMJ, Article 134:  In the vicinity of Virginia Beach, VA and Cleveland, OH on diverse occasions between Dec 97 and 10 Jul 98, willfully and wrongfully fraternize and associate with Master-at-Arms “frocked” First Class J_ R. M_, USN, an enlisted woman assigned to his unit and to a position directly under his supervision, on terms of military equality, by writing letters to, inappropriately vacationing with and engaging in sexual intercourse.
	Violation of UCMJ, Article 134:  In that Captain D_ (Applicant), a married man, did, in the vicinity of Virginia Beach, VA and Cleveland, OH on diverse occasion between Feb 98 and 10 July 98, wrongfully have sexual intercourse with Master-at-Arms “frocked” First Class J_ R. M_, USN, a married woman not his wife.
Awarded a written letter of reprimand and 15 days restriction.

980716:	Punitive Letter of Reprimand issued to Applicant.  [PROVIDED BY THE APPLICANT]

980722:	Applicant appealed the 16 July 1998 nonjudicial punishment. 
[PROVIDED BY THE APPLICANT]

981019:	Physical Evaluation Board found Applicant unfit for duty and recommended separation with severance pay (10% disability rating).  [PROVIDED BY THE APPLICANT]

990120:	Applicant voluntarily tendered his qualified resignation in lieu of processing for administrative separation for cause.  [PROVIDED BY THE APPLICANT]

990212:	Commandant of the Marine Corps denied Applicant’s request for separation in lieu of further processing for administrative separation for cause.  [PROVIDED BY THE APPLICANT]

990222:	CO, USS BATAAN, letter to the President, Board of Inquiry:  Recommended Applicant be required to show cause for retention in the U.S. Marine Corps and recommended that the characterization of discharge be general (under honorable conditions).  [PROVIDED BY THE APPLICANT]

990305:	Applicant voluntarily waived his Board of Inquiry and acknowledged that he may receive an under other than honorable discharge but did request a general (under honorable conditions).  [PROVIDED BY THE APPLICANT]

990415:	Headquarters U.S. Marine Corps recommended to the Secretary of the Navy that Applicant’s request for resignation be denied and since the Applicant submitted a waiver of the Board of Inquiry, that Applicant be separated for cause based upon misconduct and substandard performance and his service be characterized as under other than honorable conditions.

990420:	ASN (M&RA) approved Applicant's discharge under other than honorable conditions.

990422:	Commandant, Marine Corps naval message directed Applicant’s discharge with a general (under honorable conditions).

990504:	Commanding Officer, Headquarters & Service Company, U.S. Marine Corps Forces, Atlantic advised the Applicant that his request for discharge is approved under other than honorable conditions by reason of “discharged involuntary – determination of service secretary.”

990512:	DD Form 214 issued to Applicant reflecting a characterization of service as “general (under honorable conditions).”

990512:	DD Form 215 issued to Applicant correcting the characterization of service as “under other than honorable conditions.”

990517:	Commandant, Marine Corps, modified the discharge authority whereby directing under other than honorable conditions characterization of service.  

990621:	Applicant’s Attorney advised the Commanding Officer, Headquarters & Service Company, U.S. Marine Corps Forces, Atlantic, that Applicant was issued a DD Form 214 reflecting a “general (under honorable conditions)” and a DD Form 215 was subsequently issued correcting the characterization of service to “under other than honorable conditions” and requested an explanation.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990512 under other than honorable conditions due to determination of the Service Secretary (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 that the Applicant was improperly or inequitably assigned the characterization of service of under other than honorable conditions.  The characterization of service directed in CMC message 220812Z APR 99 and listed on the Applicant’s original DD Form 214 was an administrative error.  The Applicant acknowledged that he may be separated under other than honorable conditions.  HQMC recommended that Applicant be separated under other than honorable conditions and the separation authority, Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved the recommendation.  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 his fraternization with an enlisted Sailor.  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 or under honorable characterization of service.  An upgrade is inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Discharge action due  to misconduct takes precedence over disability separations per SECNAVINST 1850.4D.  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.  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.

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

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	

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