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

ex-Sgt, USMC
Docket No. MD02-00646

Applicant’s Request

The application for discharge review, received 020403, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030331.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority:  MARCORSEPMAN Par. 6214.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

[from American Legion Statement]
1.  (Equity Issue) His errors in judgement notwithstanding, this former member proffers that his overall service record warrants a fully honorable characterization of service.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

[from Applicant's statement]
3.  The following are issues to be considered by the Board:

Let me begin by stating that my discharge was inequitable because it was based on an one unmerited and unproven event and one additional accusation in nearly 9 years of service.  Prior to the events that will be discussed below, my record was more than exemplary, to include a Navy/Marine Corps Commendation Medal and a Navy/Marine Corps Achievement Medal as well as three meritorious promotions in my career.  The reason for my current departure from the military is a result of my disappointment with the method by which my incident was handled, to include allowing the General Discharge to be processed without fighting the recommendation.  I will explain.

I was selected in 1998 to the Marine Enlisted Commissioning Education Program (MECEP), and I traveled PCS to Texas A&M University.  After my arrival, I immediately began involving myself in the activities of the unit as well as college classes.  I acted as an enlisted advisor to Company N-1 of the Texas A&M University Corp of Cadets in an effort to pass on my knowlegde and skills to the young soon-to-be officers in the NROTC program.  This high visibility position is one of the reasons I believe I was treated unfairly in the pursuing manner.

The following incident occurred in March of 2000, after 2 years without any difficulties.  I was emotionally involved with a civilian female (not a student) named Ms. N_ S_ while attending classes that spring.  During the course of our relationship it came to my attention that she was having difficulties with her ex-husband for which our relationship suffered.  I informed her that if the problem could not be solved, I would no longer be able to stay involved with her.

After breaking the relationship off, I dated another female.  The other female and I went out, had several drinks, and ended up at my place for the night.  It was a bad judgement on my part.  After dropping her off the next day, I did not speak to her for a week.  Apparently mad that I had not called her (I had lost the number), she proceeded to inform a cadet friend of hers that I had "pressured" her toward having sex, but she freely admitted that we did not.  The cadet immediately proceeded to the NROTC command and informed the chain of command about the allegations.  Both the female and I made statements and a review board was convened to dispute the matter.  The presiding officer was the XO of the unit, a Navy Commander.  I was found innocent of any wrongdoing, but I was informed that my judgement was in questions for the incident and I was placed on probation for one semester.  I completed my probation without any problems.

Not long after the incident with the other female, Ms. S_ and I made an attempt to reconcile our relationship.  My neighbors were involved in the process and swore statements later to attest to the nature of the relationship.  I did inform Ms. S_ of the incident and my subsequent probation.  She was fully aware of all the circumstances.  Of that I am not proud.

We made several brief attempts to reconcile, after which we did not speak until January of 2001 -- when she accused me of sexual assault.  The Executive Officer for the NROTC Unit was in the process of retirement and was receiving a physical at the facility where Ms. S_ worked.  Ms. S_ proceeded to tell the XO that I had sexually assaulted her the previous March and that I should be counseled for my behavior.  The XO went to the Commanding Officer, Colonel S_, and demanded that an inquiry be made and that an administrative review board should be convened.  Major R_, the Marine Officer Instructor, acted as my counsel and confidant during the process.

After learning of the accusation, I requested that both Ms. S_ and I be given a lie detector test.  I was told that we could not be given the test unless formal charges for a court for a court martial were drawn.  No such legal action was ever taken.  I even requested a court martial, but I was told that I could not request such action since the proceedings were administrative and not legal.  I was left with no recourse.  A board of three officers was convened to consider the evidence, and while they found no fault on my part, they recommended to the Colonel that I be dis-enrolled form the MECEP program for lack of judgement.

Following these proceedings, the Colonel and I had a discussion.  He said he clearly valued me as a Marine, especially one willing to volunteer for any circumstance.  He said he felt very unsure about the potential for me as an officer to involve myself in another "bad judgement" situation that would leave scars on the Corps, whether intentional or not.  He asked to call my father and my pastor to confer with them before making a final decision.  I had not discussed these events with either party, so neither had anything to offer.  After another week he told me that while he did not necessarily believe the accusations, I had failed as a Marine because I did not keep myself out of a bad situation.  I agree with the Colonel wholeheartedly that I made some bad decisions along the way.  I am only human, and I failed miserably to avoid bad circumstances.  We all make mistakes.  I accept full responsibility for mine.

It was his judgement that I be dis-enrolled from the MECEP program.  The Colonel gave me the option of returning to the fleet as an enlisted Marine or being separated for the convenience of the government.  I believe I made a terrible mistake in choosing the latter.  The dis-enrollment also meant the non-competitive promotion to Staff Sergeant I had received was taken away.  My protest to the reduction was based on the fact that while promotion was granted on a non- competitive basis while in MECEP, I was in the zone for regular promotion anyway and would have been promoted by standard means regardless of the MECEP program.  My protest was denied.  I was terribly disappointed that I could have the course of my entire career dislodged by an incident never proven in court, with witnesses attesting on my behalf.

Based on the fundamental belief that I could not compete with my peers for promotion because of the dis-enrollment, I choose to accept the Colonel's petition to discharge me from the service.  I did not request mast because I was told by the NROTC staff that the officer who reviews dis-enrollment packages for the MECEP program was a Lt. Colonel and that he would not override the decision of Colonel S_, regardless of my appeals.

I was discharged in July of 2001, and it has been a long road to recovery from the whole event.  I made an effort to get access to my record to send along with this letter, but I was unable to attain them.

I believe that my exemplary record was ignored.  I was the honor graduate out of every professional school I have attended in the Marine Corps accept for Officer Candidate School, where I graduated 5th of about 171.  I was meritoriously promoted to PFC, Lance Corporal, Sergeant, and non-competitively to Staff Sergeant while enrolled in the MECEP program.  I have included copies of all of the commendatory items I have received throughout my career.  I have never even had a page 11 entry in my service record book for other than the incidents described here.

I know I was falsely accused.  I believe my situation was handled inequitably when I was given a General (Under Honorable Conditions) Discharge with no option for re-enlistment.  After almost nine years of service, I was foolish to let this situation lead me to separate from the service.  I realize that since I was dis-enrolled from a commissioning program, I can never seek another opportunity.

I only wish to continue my service as an enlisted Marine.  I am humbly asking for forgiveness for my bad judgements and equity in your decision.  Please up-grade my discharge to Honorable and my re-enlistment code to RE-1A so that I may re-enlist in the Marine Corps and finish the career I started in good faith over nine years ago.

With humble gratitude and respect, [Applicant]

Documentation

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

Copy of DD Form 214 (1995/03/22 to 2001/07/20)
Copy of DD Form 214 (1994/06/30 to 1995/03/31)
Certificate of Appointment to Staff Sergeant dtd 1 Nov 2000
USMC Honorable Discharge Certificate dtd 2 Feb 2000
USMC Honorable Discharge Certificate dtd 14 Apr 1998
Copy of DD Form 214 (1992/11/16 to 1994/06/10)
Separation Physical Exam dtd 7/6/01 (6 pages)
Fitness Reports (9 reports)
USAA letter dtd Nov 14, 2000 to Col J_ L. S_, NROTC Unit, awarding Applicant as winner of USAA ROTC Scholarship award (check for $500.00)
Certificate of Navy and Marine Corps Commendation Medal dtd 14Apr 1998
Certificate of Navy and Marine Corps Achievement Medal dtd 15 Jan 1997
Certificate of Appointment to Lance Corporal (Meritoriously) dtd 8 Jun 1993
Certificate of Appointment to Sergeant (Meritoriously) dtd 2 Nov 1996
Certificate of Good Conduct, First Award, (16 Nov 1992 to 15 Nov 1995)
Certificate of Good Conduct, Second Award, (16 Nov 1995 to 15 Nov 1998)
Texas A&M University Certificate for Distinguished Naval Student dtd 18 Jan 2001
USMC Certificate of Commendation dtd 8 May 1997
USMC Combat Development Command, Quantico Certificate of Special Achievement Award dtd 18 Aug 2000
USMC Certificate of Commendation dtd 12 Feb 92
USMC Certificate of Meritorious Mast, with Citation, dtd 15 Dec 1995
USMC Certificate of Meritorious Mast dtd 6 Jan 1994
Certificate of Achievement, Marine Corps Association, dtd 8 Jun 1993
USMC Certificate of Commendation dtd 8 Jun 1993
USMC Certificate of Commendation dtd 8 Aug 1997
Letter of Appreciation (2)
Letter of Commendatory, Col M_, dtd 1 Dec 1998
Letter of Appreciation, CO, NROTC Unit, Texas A&M University dtd 1 Sep 1999
USMC Certificate of Physical Fitness Achievement dtd18 Feb 1994
USMC Certificate of Superior Physical Achievement dtd 27 Jun 1995
USMC Recruit Depot Certificate for High Shooter dtd 12 Feb 1993
Applicant's letter to the Board dtd 10 Aug 2002 providing information on the past year and providing names that can offer character references
Applicant's letter to the Board dtd 10 Aug 2002, updating change of address and informing the Board of recent change in career path

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		921116- 940610	HON (to attend 
USAF Academy)
		   USAF		940630 - 950321	USAF cadet
		   USMC		950322 - 980414	HON
		   USMC		980415 - 000202	HON

Period of Service Under Review:

Date of Enlistment:  000203		Date of Discharge:  010720

Length of Service (years, months, days):

	Active:    01  05  17
	Inactive:  None

Age at Entry:  26			Years Contracted:  6

Education Level:  13			AFQT:  99/95

Highest Rank:  SSgt

Final Enlisted Performance Evaluation Averages:  All performance reports were available to the Board for review.

Military Decorations:  NMCCM, NMCAM

Unit/Campaign/Service Awards:  CertComm(4), GCM(2), NDSM, MM(2), LOA(3), Expert Rifle Badge(3), Expert Pistol Badge(2)

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority:  MARCORSEPMAN Par. 6214.

Chronological Listing of Significant Service Events:

000203:	Reenlisted for term of six years at the NROTC Unit, Texas A&M University, Austin, TX.

NO DATE:	Page 11 entry: Counseled for deficiencies in performance and conduct (Lack of judgment in social life, specifically, after being verbally counseled in October of 1999 to avoid situations where Applicant could be accused of unprofessional conduct, the Applicant again placed himself in a similar situation - specifically, Applicant was accused by a female acquaintance of making unwanted advances).  A summary investigation of this incident by the NROTC unit proved inconclusive, however, the judgment of Applicant was clearly in question due to the similarity of the previous accusation.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

010214:	Applicant notified of intended recommendation for discharge in the best interest of the service with a characterization of general (under honorable conditions) due to inappropriate and risky sexual behavior on several occasions.

010214:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

010222:	CG, Marine Corps Recruiting Command directed Commanding Officer, NROTC Unit, Texas A&M University to dis-enroll the Applicant from the Marine Corps Enlisted Commissioning Education Program (MECEP).

010222:	Commanding Officer, NROTC Unit, Texas A&M University recom-mended that the Applicant be discharged in the best interest of the service with a characterization of general (under honorable conditions).  The factual basis for this recommendation was reports of inappropriate behavior from two separate females between October 1999 and April 2000.  Commanding Officer’s comments:  "While the behavior described by these females represents very poor judgment, it was not criminal and, at that point, did not dictate more harsh disciplinary action....[Applicant] was diagnosed with Genital Herpes in 1997, a condition for which he will require medication for the rest of his life.  Upon further investigation, it was discovered that he has been treated at a local clinic on at least three occasions for other less serious sexually transmitted diseases.  A pattern of careless sexual conduct is clearly indicated by his medical record.... [Applicant] has repeatedly demonstrated very poor judgment in his dealings with females.  He has exhibited behavior that seems self-destructive and which could potentially prove very damaging to himself and the Officer Corps should he be commissioned....[Applicant] states that he sought professional counseling after the PRB [Performance Review Board] in April 2000.  I personally contacted the counselor who confirmed that he had seen [Applicant] about six times.  [Applicant] further contends that he has had no further inappropriate behavior since his April 2000 PRB because the last incident occurred before the April PRB.  Both these contentions are possibly true.  However, while he may be committed to correcting past indiscretions, his history of inappropriate behavior renders him a poor risk as a commissioned officer, or as a Marine in any command."

010226:	Administratively deleted from the 2000 Staff Sergeant Selection List due to Applicant's removal from MECEP for unprofessional behavior.

010307:	CG, Marine Corps Recruiting Command, Quantico, VA forwarded the recommendation for the Applicant's discharge to the Deputy Commandant, Manpower and Reserve Affairs (MMSR-3).

010605:	Office of the Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved the Applicant's discharge in the best interest of the service with a characterization of general (under honorable conditions).

010619:	CMC WASHINGTON DC MRA MM message 191312Z JUN 01 directed the Applicant's discharge under Secretarial Authority with a characteriza-tion of general (under honorable conditions).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010720 in the best interest of the service (secretarial authority) with a characterization of general (under honorable conditions) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). 

Issues 1 and 3:  The Applicant contends, through counsel, that his service record warrants a fully honorable characterization of service.  The Applicant is reminded that the Board's review of his case is limited to the period of enlistment in question.  It is the Applicant's conduct during this period that forms the basis for administrative separation and subse-quent characterization of service.  In the determination of propriety and equity, the Board focused on the circumstances surrounding the Applicant's separation and not on the Applicant's service record.  Therefore, relief on this is denied.

Issue 2:  The Applicant contends, through counsel, that his post-service conduct warrants recharacterization of his discharge.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge even though 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 in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant's performance and conduct during the period of service under review may be considered.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade of his discharge.  Relief on this basis is also denied.

Issue 3:  The Applicant contends that an inequity in his discharge exists as his NROTC unit Performance Review Board (PRB) cleared him of wrongdoing but his command eventually discharged him due to a remaining perception of questionable judgment.  The Board recognizes the results of the PRB but must make it clear to the Applicant that processing for administrative separation in the Best Interest Of The Service (BIOTS) is reserved for those cases where the Secretary of the Navy finds that processing under other reasons is neither warranted nor appropriate.   Separation by reason of BIOTS does not require substantiation of specific allegations; all that is required is that the Secretary of the Navy (or his designee) make a determination and, following review of the record, that separation is in the best interests of the service.  That requirement was met in this case.  Relief on this basis is therefore denied.

The Applicant further contends that improprieties in his discharge process existed in the fact that he was denied requests for non-judicial and judicial proceedings and that his discharge was based upon an NROTC Performance Review Board that found no fault on the Applicant's part.  The Board reviewed the procedure by which the Applicant's command processed him for administrative separation and found no improprieties.  The
Applicant's command acted within the purview of applicable Marine Corps directives and Secretary of the Navy Instructions.  Relief on this basis is denied.

The Applicant is advised that changes to reenlistment codes are beyond the authority of the NDRB and that he should address this issue to the Board for Correction of Naval Records.  The Applicant is further advised that reenlistment codes do not necessarily bar a former service member from re-entering service and that he should address the issue of a waiver to the applicable service recruiter.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6214, SEPARATION IN THE BEST INTEREST OF THE SERVICE, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 950818 until 960407).

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 “afls14.jag.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:

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