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

 ex-LCpl, USMC
Docket No. MD05-00546

Applicant’s Request

The application for discharge review was received on 20050202.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050629.  After a thorough review of the 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 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 characterization of “Other Than Honorable” is improper based on the following information:

      In August of 2003, I was raped by 1st Lt D_ while on deployment in Korea.  I reported the rape when I returned to my home duty station, Headquarters and Service Battalion, MCB Butler, Okinawa, Japan.  After the initial investigation was complete, the United States Government decided to press charges against 1st Lt D_.  I was given a grant of immunity by General F_, MCB Camp Smedley D. Butler Commanding General.  This grant of immunity can be verified by Captain K_ P_, Chief Trial Counsel, LSSS Okinawa, Japan.  The grant of immunity was given to me to protect me from any statement or testimony, written or oral, given by me that could incriminate me.  The only stipulation was I must agree to testify in the Court Martial.  In January 2004, I testified against 1st Lt D_ on behalf of the United States Government.  I have enclosed this documentation for your review.  However, I was duped.  I was never informed by counsel that the grant of immunity would only protect me from judicial proceedings, not administrative.  Therefore, the information I furnished to the government to help them convict 1st Lt D_, was used against me in a Competency Review Board and my administrative Separations package.

     During February of 2004, I was seen at the Mental Health Unit, Camp Lester Naval Hospital.  Upon his evaluation, Dr. L_, Staff Physiatrist, recommended that I be administratively separated based on adjustment disorder with anxiety, (due to the rape) a personality disorder, and depression.  Dr. L_ spoke with Headquarters and Service Battalion XO and CO and both agreed that they would support administrative separation based on these factors.  However, when I returned to Headquarters and Service Battalion, I was informed that I would be receiving an administrative separation based on evidence derived from my testimony during the court marital and conversations that I had with the LSSS Lawyers.  The Battalion did not pursue administrative separation for him.  Dr. L_ can be reached in Okinawa at DSN (number).

     I have served eight honorable years in the Marine Corps.  I had one NJP when I first entered the service at age 17 for underage drinking.  I had no other incidences.  I was promoted quickly and was considered a good Marine.  My fitreps before the rape were good.  It is my opinion that if I had not reported the rape that happened to me on deployment, I would still be serving as a SSgt on Active Duty.  However, I felt that it was my duty to ensure that the grievous act committed against me not befall on other women no matter the personal consequences to me.  I ask that the board please consider these factors when deciding whether or not to upgrade my discharge to Honorable.

Respectfully,

[signed] A_ H. B_ (Applicant)”

Documentation

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

Applicant’s DD Form 214  (Member 1)
Grant of Testimonial Immunity, signed by, J. F. F_, Brigadier General, U.S. Marine Corps Commanding, undated
Recommendation for Administrative Separation Memorandum, J. L. L_, USN, Staff Psychiatrist, U. S. Naval Hospital, Okinawa, Mental Health Department, dated February 20, 2004
USNH Patient Disposition, J_ L. L_, LCDR MC USN 2858, Staff Psychiatrist, dated February 20, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR(J)		960222 - 960414	COG
Active:   USMC		960415 - 991123	HON
		
Period of Service Under Review:

Date of Enlistment:  991124		Date of Discharge:  040414

Length of Service (years, months, days):

	Active:    04  04  21
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (11 month extension)

Education Level:  12			AFQT:  76

Highest Rank:  SSgt			MOS:  4067

Final Enlisted Performance Evaluation Averages (number of marks):  Fitness reports were not available to the board for viewing.

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NMCOSR, NDSM, COA (3), COC

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:

991124:	Applicant reenlisted into the Marine Corps for 4 years.

040115:	Counseled for deficiencies in performance and conduct.  Counseled on this date for the following deficiencies:  specifically, your poor judgement, unprofessional conduct and inappropriate behavior.  You were relieved for cause as the SNCOIC of the Network Engineering section, MCB G6 on 4 Dec 2003 for the following reasons:  demonstrating a disregard for leadership and duty by engaging in inappropriate conversation of a sexual nature and showing pornographic material to juniors Marines; maintaining an inappropriate relationship with a junior Marine that was brought to the attention of this command by your husband; and using your influence as a SNCOIC to utilize junior Marines for personal reasons.  These actions are service discrediting, prejudicial to maintaining good order and discipline, and seriously undetermined your position as a Staff Noncommissioned Officer in the U.S. Marine Corps.  Recommendation for corrective action:  Rededicate yourself to the Marine Corps Core Values of Honor, Courage and Commitment; do not allow yourself to be put in the situation where your Marine Corps Core values are questioned.  Assistance is available through your chain of command.  You are advised that failure to take corrective action may result in judicial or adverse administrative action, including but not limited to administrative separation.  I was advised that within 5 days after acknowledgment of this entry a written rebuttal can be submitted and this rebuttal will be filed on the document side of my service record book.  I choose to make a rebuttal.  

040115:	Counseled for deficiencies in performance and conduct.  Counseled this date for the following misconduct:  specifically, violation of UCMJ, Art 92:  Failure to obey a lawful order, in that you violated a direct order from A/CS G-6 not to have or make contact with a Sgt from another command that your husband accused you of having an affair with.  Specific recommendation for corrective action:  Comply with high standards of conduct and all military regulation; do not violate the UCMJ or any federal/state/local statutes.  Assistance is available through your chain of command.  You are advised that failure to take the corrective action, or any further violations of the UCMJ may result in judicial or adverse administrative action including but not limited to administrative separation.  I was advised that within 5 working days after acknowledgment of this entry a written rebuttal can be submitted and this rebuttal will be filed on the document side of my service record book.  I choose to make a rebuttal.

040122:	Applicant’s statements of rebuttal to counseling.

040204:	Counseled for deficiencies in performance and conduct on this date concerning the following misconduct:  Violation of Article 91, UCMJ:  Insubordinate Conduct towards a senior SNCO, to wit:  having received a lawful order from MSgt F_, to come in his office and sit down, an order which it was your duty to obey, did at Bldg 5687, on board Camp Foster, on or about 8 Jan 2004, willfully disobey the same.  Violation of Article 92, UCMJ:  Dereliction of duty, to wit:  you were derelict in the performance of your duties by willfully failing to finish a task given by Capt B_ and MSgt F_, at it was your duty to do.  Specific
                        recommendation for corrective action:  Comply with high standards of conduct and all military regulation; do not violate the UCMJ or any federal/state/local statutes.  Assistance is available through your chain of command.  You are advised that failure to take the recommended corrective action or any further violations of the UCMJ may result in administrative action, including, but not limited to administrative separation.  I was advised that within 5 working days after acknowledgment of this entry a written rebuttal could be submitted and that such a rebuttal will be filed on the document side of the service record.  I choose to make such a statement.

040210:	Applicants statement of rebuttal to counseling (Page 11).

040212:	Applicant notified of intention to initiate Competency Review Board and intended recommendation for reduction to grade due to professional incompetence.

040220:	Staff Psychiatrist, U.S. Naval Hospital, Okinawa, Mental Health Unit recommended the Applicant’s expeditious administrative separation due to unsuitability for further military service on the basis of hospitalization due to impulsivity and suicidal ideation, history of suicidal ideation, history of intense unstable interpersonal relationships, and a diagnosed personality disorder.  While not imminently suicidal or homicidal, retention in the Marine Corps presents an immediate and continuing danger of harm to self or others. 

040220:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights in CRB proceeding in their entirety and accept Commander’s determination of incompetence and reduction.

040220:	Commanding Officer recommended Applicant’s reduction from the grade of Staff Sergeant to Sergeant.

040302:	Commanding General, MCB, Camp Smedley D. Butler, ordered Applicants reduction to Sergeant with a date of rank of 000201.

040304:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to commission of a serious offense.

040304:	Commanding Officer, Headquarters and Service Battalion, Marine Corps Base, Camp Smedley D. Butler recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was conduct prejudicial to good order and discipline, including indecent exposure, wrongful and unduly familiar relationships and adultery.  
The following specific incidents form the basis for separation:
	(a)  In that, Sergeant B_ (Applicant), while a Staff Sergeant on active duty on active duty, did near a park by Marine Corps Air Station Futenma, on or about July 2003, while in the bushes using the restroom with Sergeant T_ W_ willfully and wrongfully expose her buttocks in an indecent manner to public view.
	(b)  In that, Sergeant B_ (Applicant), while a Staff Sergeant on active duty, had a wrongful and unduly familiar relationship with a junior Marine, Sergeant T_ W_, U.S. Marine Corps, by swimming naked with her at a public beach on Okinawa, Japan.
	(c)  In that, Sergeant B_ (Applicant), while a Staff Sergeant on active duty, had a wrongful and unduly familiar relationship with Staff Sergeant P_, U.S. Marine Corps, a man not her husband, by swimming naked with him at a public beach in Okinawa, Japan.
	(d)  In that, Sergeant B_ (Applicant), while a Staff Sergeant on active duty, had a wrongful and unduly familiar relationship with a commissioned officer, First Lieutenant N_ J. D_, U.S. Marine Corps Reserve, by swimming naked with him at a public beach on Okinawa, Japan, and touching his exposed penis with her hand, referring to him by both his hash name “I’ve got Crabs” and given name “Nate,” and demonstrating her favorite sexual position (fully clothed) with his assistance to a group of civilian and military personnel of various grades within the “hash circle.”
	(e)  In that, Sergeant B_ (Applicant), while a Staff Sergeant on active duty, had wrongfully and unduly familiar relationship with Gunnery Sergeant B_, U.S. Marine Corps, a married man  not her husband between June 2003 and July 2003 by engaging in sexual intercourse with him on four occasions.
	(f)  In that, Sergeant B_ (Applicant), while a Staff Sergeant on active duty, while being a member of the Okinawa Hash House Harriers Club (a.k.a. “The running club with a drinking problem”) and while a Staff Sergeant on active duty participated in inappropriate behavior involving active duty service members that brings discredit upon the United States military, specifically midnight “naked UGH” (a.k.a. Under Ground Hash) runs.  

040323:	SJA review determined the case sufficient in law and fact.

040326:	Commanding General, Marine Corps Base, Camp Smedley D. Butler, Okinawa, advised the Commandant of the Marine Corps, that the Applicant was discharged under other than honorable conditions by reason of misconduct due to the commission of a serious offense, and that he directed an administrative reduction to pay grade E-3 effective upon separation.

040329:	Counseled concerning the CRB proceedings on 040220.  Applicant acknowledged reduction to Sergeant for professional incompetence.

[Complete Discharge Processing Package not contained in service record].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040414 under other than honorable conditions for misconduct due to the commission of a serious offense (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    

Issue 1.  The Applicant asserts her discharge was improper because she was never advised by counsel that the testimony she provided under immunity as a witness at  court-martial could be used to separate her administratively.  The Board found that the Grant of Testimonial Immunity provided the Applicant with protection against prosecution in any criminal case but made no mention of nonjudicial or administrative action.  The Applicant failed to provide, nor did the record contain, any evidence that the Applicant’s counsel failed to properly advise her of the implications of her testimony or the limitations of her grant of immunity. The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue.   As such, the Board found no inequity or impropriety on this basis.  However, even if the Applicant could demonstrate she was improperly counseled, such proof would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Relief denied.

The Applicant contends that her discharge characterization should be changed because she was diagnosed with an adjustment disorder, a personality order and depression.  She further stipulates that her chain-of-command “agreed that they would support administrative separation based on these factors.”  The record shows that competent medical authority recommended the Applicant be administratively separated on the basis of her diagnosed personality disorder on 20040220.  Regulation requires that administrative separations based on misconduct take precedence over separations based on a condition not a disability, medical discharges, and personality disorders.  The Applicant’s Commanding Officer, in compliance with the regulation, recommended the Applicant’s discharge by reason of misconduct on 20040304.  Neither the record nor the documentation provided by the Applicant suggests any agreement between the Applicant’s military physician and the Applicant’s Commanding Officer nor would any such agreement be binding upon the Commanding Officer.  Relief denied.

An under other than honorable conditions discharge 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 violations of Articles 92 and 134 for fraternization and adultery.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the Marine Corps and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 01 September 2001 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 92, for failure to obey an order or regulation (fraternization), Article 134, for indecent exposure, or Article 134, for adultery.

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

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

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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