ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080617
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service
Prior Service:
Inactive: USMCR (DEP)	19850320 - 19851001  		Active:   	19851002 - 19890504  
										19890505 - 19930209  
										19930210 - 19970207  

Period of Service Under Review:
Date of Enlistment:  19970208	Period of Enlistment:   Years   Months	Date of Discharge:  20010207
Length of Service:    Years    Months  00  Days       Education Level:        Age at Enlistment:           AFQT:  84
MOS:  2832/0411/2831               Highest Rank:                      Fitness Reports:  
Awards and Decorations (per DD 214):  Rifle  Pistol  JMU NCU MUC GCM W/2* NDSM SWASM W/3* SSDR W/1*
                                                                 NASR KLM KLM (K) LoC

Periods of UA/CONF:  

SPCM:  
        19980123:  Article 92 (Failure to obey an order or regulation), 2 specifications:
- Specification 1:  Violate a lawful general regulation by wrongfully making unwelcome sexual advances                     
                              and sexual comments of a sexual nature toward Sergeant S. E. W.
                 - Specification 2: Violate a lawful general regulation by wrongfully making unwelcome sexual advances and                                                         
                                              sexual comments of a sexual nature toward Staff Sergeant M. M. H.
             Article 134 (General articles), 4 specifications:
                 - Specification 1:  Commit an indecent assault upon Sergeant S. E. W.
                 - Specification 2:  Commit an indecent assault upon Staff Sergeant M. M. H.
                 - Specification 3:  Wrongfully solicit Sergeant S. E. W. to commit an offense under the UCMJ, to wit:            
                                               adultery).
                 - Specification 4:  Wrongfully solicit Staff Sergeant M. M. H. to commit an offense under the UCMJ, to wit:         
                                               adultery.
              Sentence:  BCD; RIR.
              Appealed:  NMCCCA (20000810):  The findings and sentence are set aside.

6105 Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  

     Related to Post-Service Period (cont): 

Other Documentation (Describe):  	
	- Certificate of Appreciation
	- Protestant Worship Service 
	- Ascension Day

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
31 January 1997 until 31 August 2001.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  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 (Disobey a lawful order or regulation), Article 134 (Adultry).  

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

Applicant’s Issues

1.  Record of service (Isolated incident with mitigating circumstances).
2.  Court-martial overturned, but was still administratively separated without just or cause.

Decision

Date:  20081009             	Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

:  ()  .  The Applicant contends his discharge should be upgraded based on his record of service which was excellent apart from a single period of misconduct.  For the edification of the Applicant, despite a Marine’s prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service was marred by a SPCM for violations of the Uniform Code of Military Justice (UCMJ):  Article 92 (Failure to obey an order or regulation) and Article 134 (Adultery).  Violations of Article 112a are considered serious offenses, punishable by punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  

The Applicant has requested an upgrade to an “Honorable” characterization.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  An “Under Other Than Honorable Conditions” discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  The Applicant’s misconduct constitutes a significant departure from the conduct expected of a Gunnery Sergeant in the U. S. Marine Corps with 16 years of service and experience.  The Board acknowledges the award of an “Under Other Than Honorable Conditions” characterization was appropriate for the time of service and the violations of the UCMJ involved.  The Board determined an upgrade would be inappropriate.
 
:  ()  .  The Applicant contends he was administratively separated without just  cause after he was convicted at a SPCM for violations of the UCMJ, Article 92 and Article 134.  These articles encompassed two specifications of violating the Navy’s regulation on sexual harassment, two specifications of indecent assault, and two specifications of solicitation to commit adultery.   The Applicant was sentenced to a bad-conduct discharge and reduction to pay grade E-1 (Private).  This ruling was set-aside by the Appeals Court, which gave the government two alternatives:  Affirm a sentence that does not include a bad-conduct discharge or order a rehearing.  The government chose not to rehear the case at a special court-martial and chose to administratively separate the Applicant for the commission of a serious offense under paragraph 6210.6 of the MCO P1900.16E (MARCORSEPMAN).  The three member administrative board returned findings of misconduct by a vote of 2-1, by a vote of 3-0 that the misconduct warranted separation, and by a vote of 3-0 that the separation should be characterized as “Under Other Than Honorable”.  Again, in reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant provided no documentation is show this action was either in error or was contrary to  established Navy and Marine Corps discharge procedures.  The Board determined an upgrade would be inappropriate.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 Naval service.  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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  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