ex-MAJOR, USMC 

Current Discharge and Applicant’s Request

Application Received:  20090403
Characterization of Service Received: 
Narrative Reason for Discharge:  INVOLUNTARY SEPARATION (UNACCEPTABLE CONDUCT – BOARD)
Authority for Discharge:  SECRETARY OF THE NAVY INSTRUCTION 1920.6B

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19860314 - 19860512  	Active:	 19860513 - 19890513

Period of Service Under Review:
Date of Appointment:  19890514	Age:  
Years Contracted:  Indefinite
Date of Discharge:  20060307	Highest Rank: Major
Length of Service:  16  Year(s)    Month(s)  24  Day(s)
Education Level:  	AFQT:  89
MOS:  0402
Officer’s Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol     (2)   (2)  (1 star) AFRSM (W/”M” DEVICE, BRONZE HOUR GLASS) LoA

Periods of UA/CONF:  

NJP:  
-20051101:	Article 133 (Conduct unbecoming an officer), 2 specifications
	Awarded: Punitive Letter of Reprimand
Board of Inquiry:

- 20060209:  Awarded: Other Than Honorable separation

Retention Warning Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service: 
		DD 214:		Service/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 Congress member:	

	Other Documentation:  

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 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.  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.

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

Applicant’s Issues

1.	Decisional issues.  The Applicant claims he was denied due process, and the incident that led to his discharge was an isolated event in an outstanding record of service.

Decision

Date:  20091022		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  Result of a Board of Inquiry.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service includes one Non-judicial Punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 133 (Conduct Unbecoming of Officer, two specifications.)  Based on the offenses committed by the Applicant,  command determined that he would appear before a Board of Inquiry (BOI), which found the allegations against the Applicant substantiated by the preponderance of the evidence and recommended he be administratively processed for separation with an Under Other Than Honorable Conditions characterization of service.

:  (Decisional) () .  The Applicant claims he was denied due process as a result of the excessive time it took for the investigation of his misconduct, which formed the basis for his BOI, to be finalized; because the senior member of the BOI agreed to an extension but reneged; and because he was denied the full ten days allotted for his review of the BOI record of proceedings as set forth in SECNAVINST 1920.6C.  As a result of an NJP conducted on 1 November 2005, the Applicant was informed on 22 November 2005, he would be directed to show cause for retention at a Board of Inquiry.  The BOI took place on 9 February 2006 and recommended that he be separated with an Under Other Than Honorable Conditions characterization of service.  Secretary N_, Assist SecNav (Manpower and Reserve Affairs) approved his separation on 7 March 2006.

The Applicant’s misconduct occurred over the period of January 2005 through April 2005.  A request for an investigation was initiated late April 2005.  Per a time line provided by Col P_ H P_, 2d MarDiv Inspector General on 15 October 2009, a JAG investigation was initiated on the Applicant on 29 April 2005.  It was completed on 12 July 2005.  The Commanding General (CG), 2d MarDiv reviewed the investigation between 10 August and 16 October 2005.  On 17 October 2005 the Applicant was informed that the CG would impose NJP.  On 1 November 2005 the CG held NJP.  The Applicant pled guilty to the charges and the CG accepted his guilty plea.  On 15 November 2005 the Applicant was directed to show cause for retention at a BOI.  The BOI was originally scheduled for 22 December 2005, but was delayed and finally held on 9 February 2006.  The Applicant provided the NDRB with an email dated 8 February 2006 in which LtCol G_ (2dMarDiv SJA) informed Col S_, the Senior Member of the BOI that Maj S_, the Applicant’s defense counsel, was going to request more time.  In an email response, LtCol G_ suggested the Senior Member convene the board and then recess.  Col S_ replied that he would convene the BOI on the next day and see what they could accomplish.  Nowhere within these emails provided by the Applicant to the NDRB did the Senior Member commit to recessing the BOI.  Due to concerns about leaving his new position outside of North Carolina, the Applicant chose not to appear before the BOI.  The BOI members then reviewed the case and determined the Applicant’s conduct fell far short of that which is expected of a senior commissioned officer; that it was not just a one time lapse of judgment; and since there was enough evidence to determine impropriety of conduct, they did not need to recess.  Based on the severity of the allegations of misconduct made against the Applicant; the desire to conduct the most thorough investigation possible; the wartime operating tempo of the 2dMarDiv staff; and the fact the Applicant was the subject of CG’s NJP between the completion of the investigation and the BOI, the NDRB opined that there did not appear to be excessive delays in the processing of his case, nor did the Senior Member of the BOI renege on an agreement to an extension.

In regards to the Applicant allegation of being denied ten days for review of the BOI proceedings, the following events are germane.  On 10 February 2006, the day following the BOI hearing, Maj S_, the counsel for the Applicant, received the BOI record of proceedings for his initial review.  He was given five days to review the record and make corrections, which he did.  On 22 February 2006, Maj S_ was provided with the “final” BOI report and was given 5 working days to examine it. On 27 February, Maj S_ requested a 10-day extension which was denied.  On 1 March, the five working days the Applicant was given to submit additional matters for consideration expired.  Maj S_ claimed that denying the Applicant the requested extension violated SECNAVINST 1920.6, which would have allowed the Applicant an additional 5 days to rebut the BOI findings.  The NDRB noted that, despite the fact the extension request was denied, neither the Applicant nor his counsel presented additional material for consideration after their review which might have changed the outcome or challenged the decision of the BOI members.  To date no new material has been presented by the Applicant or his attorney.  The Applicant failed to show how his case was materially impacted or prejudiced by not receiving the requested additional time for a rebuttal to the BOI findings.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain as a result of a Board of Inquiry.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge, March 7, 2006.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.]

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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