ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20151111
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  N/A
Authority for Discharge:   secnavinst 1920.6c

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

Summary of Service

Prior Service:
Inactive:	USN (USNA)	20030701 - 20070524  	Active:	

Period of Service Under Review:
Date of Appointment:  20070525	Age:  
Years Contracted:  Indefinite
Date of Discharge:  20141028	Highest Rank:  CAPTAIN
Length of Service:    Year(s)    Month(s)  04  Day(s)
Education Level:  	AFQT:  NFIR
MOS:  7563
Fitness Reports:    

Awards and Decorations (per DD 214):	Rifle  Pistol  AM(2) ACM  (2)   LoA

Periods of UA/CONF:  

NJP:  

- 20130820:	Article 133 (Conduct unbecoming an officer and gentleman) 
	Article 134 (General article, fraternization) 2 specifications
	Awarded:  PUNITIVE LETTER OF REPRIMAND   Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Officer administrative separation

Discharge Process

20130820:	NJP -- Viol UCMJ Art. # - 133, 134 (2 specifications).
	Awarded - FOP ($2680) for (2 months); PUNITIVE LETTER OF REPRIMAND.

20130820:	The Applicant elected not to appeal the NJP.

20130824:	Applicant submitted a statement in response to the letter of reprimand.

20130827:	Commanding General, 2d Marine Aircraft Wing (Forward) endorsed Report of  and provided copy to Applicant for comment.

20130827:	Applicant did not appeal the NJP and declined to submit matters in rebuttal.

20131010:	 Marine Corps Forces Command directed the Applicant show cause for retention at a board of inquiry.

20131125:	Board of Inquiry recommended that Applicant be  with characterization of service as General (Under Honorable Conditions).

20131217:	Applicant, through his detailed counsel, acknowledged receipt of the report of the board of inquiry.

20140106:	Applicant, through civilian counsel, submitted a rebuttal letter the report of his board of inquiry.

20140624-25:	Applicant, through civilian counsel, submitted additional matters for consideration.

20140721:	Commandant of the Marine Corps recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that  with characterization of service as General (Under Honorable Conditions).

20140826:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of misconduct, with characterization of service as General (Under Honorable Conditions).

20141028:	Applicant discharged this date.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “SECNAVINST 1920.6C”
	  “”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6C (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 March 1997.

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 133, 134.

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

Applicant’s Issues

1.	The Applicant contends his discharge was improper and inequitable as the allegations against him were false and grossly taken out of context.  The Applicant further contends his NCIS investigation substantiated the charges against him as hearsay and lies. 
2.	The Applicant contends that there was unfair command influence that interfered with his ability to receive due process.
3.	The Applicant contends that he was misled from the onset about his rights under the situation he found himself in.
4.	The Applicant contends his narrative reason for separation is improper and unjust as he was not under investigation for sexual misconduct.
5.	The Applicant contends that his in-service performance and conduct had been impeccable until the allegations against him surfaced which merits consideration for the upgrades requested.
6.	The Applicant contends that other command members committed similar misconduct without punishment.
7.	The Applicant contends that the advice he received from his inexperienced lawyer was unwise resulting in his accepting NJP even though he was innocent of the charges against him.

Decision

Date:  20160407		Location: Washington D.C.	 Representation: 

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

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 Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included   for  of the Uniform Code of Military Justice (UCMJ):  Article 133 (Conduct unbecoming an officer and gentleman, one specification) and Article 134 (General article, fraternization; two specifications).  Based on the offenses committed by the Applicant, he was notified of the initiation of administrative proceedings requiring him to show cause for retention in the naval service before a board of inquiry.  The Applicant acknowledged his rights and exercised his right to present his case before a board of inquiry (BOI).  The Applicant’s BOI unanimously found that the preponderance of the evidence substantiated the reason for separation:  substandard performance of duty and the commission of a military or civilian offense(s) that, if prosecuted under the UCMJ, could be punished by confinement of six months or more, or if prosecuted under the UCMJ, would require specific intent for conviction.  The Applicant was represented by both military and civilian counsel during his BOI.

In reviewing the material submitted by the Applicant and his counsel, the NDRB noted a significant amount of personally identifiable information (PII) in the form of 26 pages from another servicemember’s service record included as part of the Applicant’s documentary evidence.  This included enlistment documentation including the member’s full social security number and home of record, administrative counseling records spanning multiple enlistments, official nonjudicial punishment records, service record extracts including her record of emergency data, her servicemembers’ group life insurance election certificate, basic individual record, state of legal residence declaration, G.I. Bill election form, and dependency application and active duty spouse certification forms, which also included her spouse’s PII.  The NDRB reviewed this material, which was associated with one of the enlisted servicemembers the Applicant was accused of fraternizing with, and then removed and properly disposed of it.  No documentation was provided by the Applicant to demonstrate that he had the servicemembers permission to have this documentation or clarify how he had obtained it.  The NDRB noted that these documents were not included in the Applicant’s official service record. 

:  (Decisional) ()  .  The Applicant contends his discharge was improper and inequitable as the allegations against him were false and grossly taken out of context.  The Applicant further contends his NCIS investigation substantiated the charges against him as hearsay and lies.  The Applicant has not presented any documentation to prove the commanding general disregarded relevant information or failed to comply with applicable regulations during the NJP proceedings or that his BOI similarly disregarded relevant information or failed to comply with applicable regulations.  The record of evidence and materials presented by the Applicant document that the Applicant fully exercised his rights during his legal and administrative discharge processes.  He clearly chose to accept NJP instead of a trial by court-martial and had legal representation in the presentation of his defense before a BOI.  

In accordance with the applicable regulations, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The Applicant was provided the opportunity to present his case before a court-martial, but waived that right by knowingly and intelligently accepting NJP, and during a BOI.

Furthermore, the NDRB reviewed the Applicant’s 24 August 2013 STATEMENT IN RESPONSE TO THE LETTER OF REPRIMAND which stated:  “Defense of those actions would lend to the perception that I find it permissible to act in the manner in which I was charged.  With that being said, I offer no defense.  It was completely ignorant and irresponsible for me to carry on in such a manner due to the position I hold within the Marine Corps and HMLA-167.  While it was never my intent to act in a manner that is contradictory to what is expected of an officer or in a manner that detracts from the good order and discipline of a unit, I found myself doing just that.  Words cannot adequately express the amount of regret and remorse I feel for disgracing myself and other officers throughout the Marine Corps due to this lapse in judgment.”  Further review of the Applicant’s record revealed a similar statement as part of his adverse fitness report rebuttal.  Therefore, after reviewing the Applicant’s issues, supporting documents and the evidence of record, the NDRB discerned no impropriety or inequity and the Applicant’s separation for his misconduct was appropriate.  Relief denied.

:  (Decisional) ()  .  The Applicant contends that there was unfair command influence that interfered with his ability to receive due process.  The record contained no evidence of any wrongdoing by the Applicant’s commanding general or anyone else in the discharge process.  The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends that he was misled from the onset about his rights under the situation he found himself in.  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 his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was misled concerning his rights during his legal or administrative separation processing.  The Applicant’s statements and documentation submitted to this board do not overcome the government’s presumption of regularity in this case.  Relief denied. 

4:  (Decisional) ()  .  The Applicant contends his narrative reason for separation is improper and unjust as he was not under investigation for sexual misconduct.  After an exhaustive review of the Applicant’s service record the NDRB found he was not separated for sexual misconduct related charges corresponding with the narrative he claims was the underlying basis for his separation.  A review of the Applicant’s provided narrative would have corresponded to being charged with violations of the UCMJ Article 120 (Wrongful sexual contact) and 134 (General article, adultery) instead of just Articles 133 (Conduct unbecoming an officer and gentleman) and 134 (General article, fraternization).  The NDRB specifically notes that sexual misconduct is not required for the violation of fraternization policy.  A review of the Applicant’s service record and all materials provided by the Applicant for review show that he was properly and equitably separated based upon the preponderance of the evidence against him for the violations he was both found to have committed and freely admitted to in multiple statements in the record.  The NDRB found this issue to be without merit.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends that his in-service performance and conduct had been impeccable until the allegations against him surfaced which merits consideration for the upgrades requested.  The Applicant was administratively separated and not separated upon fulfillment of his service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current service period, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  Relief denied.

6:  (Decisional) ()  .  The Applicant contends that other command members committed similar misconduct without punishment.  Statements alone, without documentary evidence, are not enough to overcome the presumption of regularity.  Furthermore, while other members of his unit may have committed or been charged with the same or similar offenses, each case must stand on its own merits.  The Commanding General is allowed to consider matters for extenuation and mitigation unique to each individual.  Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment.

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Marine Corps was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.  Relief denied.

7:  (Decisional) ()  .  The Applicant contends that the advice he received from his inexperienced lawyer was unwise resulting in his accepting NJP even though he was innocent of the charges against him.  Documentation contained within the Applicant’s service record clearly documents that he consulted with qualified legal counsel on 17 August 2013 before deciding to accept NJP.  The NDRB noted that the Applicant’s article-15—acknowledgement of rights form annotated that he spoke with a qualified military lawyer equal in rank to himself (a Captain) and not an inexperienced first lieutenant as stated in the Applicant’s written statement to this board.  The Applicant’s acknowledgement of rights form also clearly stated in paragraph 2:  “I also acknowledge that if I am voluntarily or involuntarily separated before I complete an active duty service requirement incurred and if I received advanced educational assistance (USNA, ROTC, FELP, etc…) that I may be required to reimburse the U. S. on a pro rata basis for the unserved portion of the active service requirement.”  Furthermore documentation provided by the Applicant shows at the time of his BOI he had retained both his military defense counsel, a Major, and the same civilian counsel he is currently retaining for this application.  An exhaustive review of all available material clearly shows that the Applicant had sufficient qualified legal counsel available to him throughout his legal and discharge processes.  The NDRB found this issue to be without merit.  Relief denied.

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 remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain . 

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

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 Disabled American 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 their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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