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

 ex-Capt, USMC
Docket No. MD05-00453

Applicant’s Request

The application for discharge review was received on 20050118.  The Applicant requests that his characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20051116.  After a thorough review of all available 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 characterization of the service and reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/UNACCEPTABLE CONDUCT, authority: MARCORSEPMAN Par. 4102.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Whether an other-than-honorable discharge was an inappropriate characterization.

2.  Whether Applicant’s conduct warranted separation.”

One additional issue was submitted at the time of the personal appearance hearing:

“1.  Whether Applicant’s post separation conduct warrants clemency considerations:”

Documentation

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

Photocopy of DOD identification card issued as an Army contractor on Sep 20, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USMCR		950719 - 951007	DEP
Active:  USN			870824 - 921231	HON   (05 04 07)
	Active:  USMCR		951008 - 951214	HON 	(00 02 06)
	Active:  USMCR		951215 - 991112	HON 	(03 10 28)

Period of Service Under Review:

Date of USMC Commission:  991113		Date of Discharge:  010913

Length of Service (years, months, days):

	Active:    01 10 00	(total service 11 03 11)
	Inactive:  None

Age at Entry:  32			Years Contracted:  Indefinite

Education Level:  Bachelor of Arts

Highest Rank:  Capt				MOS:  3002

Final Performance Evaluation Averages: All officer performance reports were not available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Rifle Marksman Badge, Pistol Sharpshooter Badge, National Defense Service Medal, Certificate of Appreciation, Sea Service Deployment Ribbon (3), Meritorious Unit Commendation, Overseas Service Ribbon (3), Joint Meritorious Unit Award 

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.

Chronological Listing of Significant Service Events:

991113:	Applicant accepted USMC Regular Commission.

991215:	Applicant stopped by the PWC Police for driving 79 mph in a 35 mph speed limit zone. Applicant subsequently arrested for DWI and consented to a breath analysis that revealed a 0.15% alcohol content. Police report indicates that a passenger in the Applicant’s car was charged with possession of cocaine. Applicant identified himself to the arresting officer as someone who worked as a security officer and not as active duty Marine officer.

991217:	Applicant stopped by PWC Police and issued a citation for driving with a suspended license.

000119:	Applicant appeared in PWC General District Traffic Court charged with DWI. Convicted of reckless driving, sentenced to 180 days jail, with 176 days suspended. Drivers license suspended for 6 months.

000403:	Applicant advised of Article 31 rights and that he is suspected of assault and property damage.

000403:	Applicant arrested by the PWP department for a domestic assault and battery, which occurred on 000401. Applicant released on a signature warrant by the Prince William County Magistrate, pending a court appearance on 000405.

000524:	Applicant referred to MCB Quantico Command Substance Abuse Counseling Center for alcohol abuse/dependency screening.

000524:	Applicant referred to MCB Quantico Family Advocacy Program for evaluation and treatment/counseling.

000610:	Charged with operating a vehicle while license suspended onboard Marine Corps. Base Quantico.

000922:	Counseled this date regarding several actions and infractions, which demonstrate extremely poor judgment and reproachable character. Further counseled that these violations of the standards of good order, discipline, and conduct and the events surrounding them, are subject of further investigation. Furthermore, these infractions can result in administrative or judicial actions, or both, including involuntary administrative separation, and/or limitation on further service.

001010:	Commanding Officer, Headquarters and Service Battalion recommended to the Secretary of the Navy via Commanding General, Marine Corps Base Quantico and Commandant of the Marine Corps that the Applicant be required to show cause for retention in the Marine Corps at a Board of Inquiry.  The factual basis for this recommendation include his arrest and subsequent guilty plea to assault and battery charges in Prince William County and damage to the private property of Ms. R_ S_.  As further evidence of his character deficiencies, Captain M_ (Applicant) attempted to have Ms. S_ cover up the assault and battery by telling her to lie to the authorities about how she sustained the injuries; he prevented her from calling for help; and had sexual intercourse with the assault victim despite her statements that she did not want to.  The SNO had a DWI arrest (for driving 79 mph in a 35mph zone and a 0.15% reading on the breathalyzer) and was subsequently convicted of reckless driving.  During his arrest, SNO lied to the arresting officer by stating that he worked security and was out of the service.  The SNO did not have his military ID in his possession.  He has been caught driving on a suspended license on 17 December 1999 and again on 10 June 2000.  The Marine Corps Base Quantico police report of 10 June identified him as a civilian employee.  This misconduct on his part demonstrates that he lacks the high moral character required of an officer of Marines.  I believe that Captain M_ (Applicant) has no potential for further military service.”

001025:	Commanding General, Marine Corps Base Quantico, recommended to Commandant of the Marine Corps that Captain M_ (Applicant) be required to show cause for retention in the U.S. Marine Corps.

010328:	Charges of assault from 000401 dismissed.

010404:	Board of Inquiry. The BOI found that a preponderance of the evidence substantiated substandard performance of duty, that the Applicant had committed and offense which could be punished by confinement of 6 months or more, has engaged in personal or professional conduct that is unbecoming an officer, and has misrepresented or omitted facts. The BOI, by majority vote, recommended that Captain M_ (Applicant) be separated and his service be characterized as Other Than Honorable.

010604:	GCMCA, Commanding General, Marine Corps Base Quantico, recommended to the Secretary of the Navy via Commanding General, Marine Corps Combat Development Command and Commandant of the Marine Corps that Captain M_ (Applicant) be separated from the service and that the characterization of his service be other than honorable.

010615:	Commanding General, Marine Corps Combat Development Command forwarded recommendation of separation from the service and characterization of service other than honorable to Commandant of the Marine Corps.

010723:	Deputy Commandant for Manpower and Reserve Affairs, recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that Captain M_. (Applicant) be separated and that his service be characterized as Under Other Than Honorable Conditions by reason of unacceptable conduct.

010820:	Assistant Secretary of the Navy (M&RA) approved Applicant’s discharge.

041112:	NDRB documentary record review Docket Number MD04-01147 conducted.  Determination:  Discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010913 under other than honorable conditions due to unacceptable conduct (A).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

When the service of a member of the United States Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record.  The Applicant was the subject of a Board Of Inquiry (BOI) which found substandard performance of duty by committing an offense that could be punished by six months or more of confinement, intentionally misrepresenting facts in official documents or statements, and engaging in personal or professional conduct that is unbecoming an officer.  Separation under these conditions generally results in a characterization of service of under other than honorable conditions.  Relief denied.

The Applicant contends that his under other than honorable conditions discharge is an inappropriate characterization.  Applicable regulations require that a Marine’s characterization of service be based upon the member’s total performance of duty and conduct.  In some circumstances, conduct or performance of duty reflected by even a single adverse incident may form the basis for the characterization of a Marine’s overall service.  A BOI found by a preponderance of the evidence that the Applicant had failed to demonstrate acceptable qualities of leadership required of an officer of his grade; operated a motor vehicle in a reckless manner; operated a motor vehicle after his driver’s license was suspended; made a false official statement; and committed an assault.  The Board concluded that such incidents of misconduct are sufficient to warrant a service characterization of under other than honorable conditions.  An upgrade would be inappropriate.  Relief denied.

The Applicant challenges that his conduct did not warrant separation.  A thorough and proper command investigation was conducted into the alleged misconduct of the Applicant.  A Board of Inquiry was convened and recommended separation.  This decision was reviewed and endorsed by the general courts martial convening authority - the Commanding General of the Marine Corps Combat Development Command, the Commandant of the Marine Corps and the Secretary of the Navy.  Relief denied.    

The Applicant contends his post service conduct warrants clemency.  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 Marine Corps.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant submitted a photocopy of his Army contractor identification badge.  He also provided testimony of his community involvement by coaching, his small business, and his limited social use of alcohol and rejection of illegal substances.  The Applicant discussed in detail his current marriage and his fatherly responsibilities of his biological children and stepchildren, as well as, financial support he provides for his daughter residing with her mother.  He indicated he has pursued further education by completing an MBA and also intends to begin working toward a masters of divinity in the spring.  Furthermore, he provided testimony regarding his significant involvement with his church including work with the outreach program, being a mentor to two children in the neighborhood and assignment as head of security.   After careful consideration, the Board concluded the Applicant’s post-service achievements, which were not supported by verifiable documentation, were insufficient to mitigate his misconduct.  Relief denied.

For the edification of the Applicant, the Board recognized and considered in its decision the Applicant’s contention of incorrect or inaccurate facts.  He specifically discussed the reduction of his DWI arrest to reckless driving, two charges of driving with a suspended license and two charges of false statements regarding his active duty status.  The BOI based their decision on the facts.  Their decision was based on the Applicant’s reckless driving conviction and operating a motor vehicle on 10 June 2000 while his driver license was suspended, facts the Applicant did not deny.  While BOI found the charge of making a false official statement to a Prince Williams County Police Officer lacked a preponderance of the evidence, the BOI accepted the charge of making a false official statement to Marine Corps Base Quanitco Military Police.  In refuting this charge, the Applicant presented no substantiating evidence.   

The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization service, if he desires further review of his case.

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. 14 Mar 97.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023