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

 ex-Capt, USMC
Docket No. MD04-01147

Applicant’s Request

The application for discharge review was received on 20040707.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority.  The Applicant requests a personal appearance hearing in Washington National Capital Region.  The Applicant listed civilian counsel as his representative on the DD Form 293.  In the acknowledgement  letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041112.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was considered by the NDRB.  The Board’s vote was unanimous that the character and reason for the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/UNACCEPTABLE CONDUCT, authority: MARCORSEPMAN Par. 4102.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Whether an other-than-honorable discharge was an appropriate characterization.

2. Whether unacceptable conduct existed in this case of a sufficient magnitude to warrant separation.”

Additional issues submitted by Applicant’s counsel:

3.  “1.  1.  I,  _, [Applicant] (hereafter “Applicant”), hereby respectfully request that:

a.  My discharge be upgraded to Honorable.

b.  My narrative reason for separation be changed to Secretarial Authority.

c.  My separation code be changed to the code for Secretarial Authority.

Documentation

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

Copy of DD Form 214
Supplemental Statement of Applicant, (4 pages)
Letter from HQMC, dtd January 12, 2004
Letter from MCB Quantico, dtd 28 Jan 04
Copy of Command Investigation, CO H &S Bn, (35 pages) dtd 29 Apr 00

PART II - SUMMARY OF SERVICE

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

	Active:   USN			870824 - 921231	HON
	Active:   USMCR (OC)	951008 – 951214	To Accept Reserve Commission

Period of Service Under Review:

Date of Commission:  951215		Date of Discharge:  010913

Length of Service (years, months, days):

	Active:  05  08  29
	Inactive:  None

Age at Entry:  28			Years Contracted:  *

Education Level:  College Grad	AFQT:  N/A

Highest Rank:  Capt (0-3)		MOS:  3002

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NUC, N&MCOSR (3), JMUA, PSB, RSB,  

Days of Unauthorized Absence:  None 

*  Years Contracted, not legible in the record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/UNACCEPTABLE CONDUCT, authority:  MARCORSEPMAN Par. 4102.

Chronological Listing of Significant Service Events:

991113:	Accepted Regular Commission (USMC).

991215:	Applicant stopped by the Prince William 
		County Police for driving 79 mph in a 35 mph speed limit. 
Applicant subsequently arrested for DWI and consented to a breath analysis that revealed a .15 alcohol content.  Police report indicates that a passenger in the Applicant’s car was charged with possession of cocaine.  Applicant identified himself to the arresting officer as someone who worked as a security officer and not as a active duty Marine officer.

991217:	Applicant stopped by Prince William County Police and issued a citation for driving with a suspended license.

000119:	Applicant appeared in Prince William County General District Traffic Court charged with DUI.  Convicted of reckless driving, sentenced to 180 days jail, with 176 days suspended.  Drivers license suspended for 6 months.

000403:	Applicant arrested by Prince William Police for domestic assault and battery that occurred on 000401.  Applicant released on a signature warrant by the Prince William County Magistrate, pending a court appearance on 000405. 

000403:	Applicant advised of Article 31 rights and that he is suspected of assault and property damage.
 
000524:	Applicant referred to MCB Quantico Command Substance Abuse Counseling Center for alcohol abuse/dependency screening.  

000524:	Applicant referred to MCB Quantico Family Advocacy Program for evaluation and treatment/counseling.

000922:	Counseled this date regarding several actions and infractions which demonstrate extremely poor judgment and reprobate character.  Further counseled that these violations of the standards of good order, discipline, and conduct, and the events surrounding them, are subject of further investigation.  Furthermore, these infractions can result in administrative or judicial actions, or both, including involuntary administrative separation, and/or limitation on further service.

001010:	Commanding Officer recommended that the Applicant be required to show cause for retention in the Marine Corps at a Board of Inquiry.  The factual basis for this recommendation was: “ his arrest and subsequent guilty plea to assault and battery charges in Prince William County and damage to the private property of _.  As further evidence of his character deficiencies, Captain _ (Applicant) attempted to have Ms. S_ cover up the assault and battery by telling her to lie to the authorities about how she sustained the injuries; he prevented her from calling for help; and had sexual intercourse with the assault victim despite her statements that she did not want to.  The SNO had a DWI arrest (for driving 79 mph in a 35 mph zone and a 0.15 reading on the breathalyzer) and was subsequently convicted of reckless driving.  During his arrest, SNO lied to the arresting officer by stating that he worked security and was out of the service.  The SNO did not have his military ID in his possession.  He had been caught driving on a suspended license on 17 December 1999 and again on 10 June 2000.  The Marine Corps Base Quantico police report of 10 June identified him as a civilian employee.  This misconduct on his part demonstrates that he lacks the high moral character required of an officer of Marines.  I believe that (Applicant) has no potential for further military service.”

001025:	CGMCA, CG, MCB Quantico, recommends that (Applicant) be required to show cause for retention in the U.S. Marine Corps.

010404:	Board of Inquiry.  The BOI found that a preponderance of the evidence substantiated most of the allegations of misconduct and substandard performance of duty against (Applicant).  The BOI substantiated the following basis for separation: failure to demonstrate acceptable qualities of leadership required of his grade; commission of a military or civilian offense that could be punished by confinement of 6 months or more and any other misconduct that would require specific intent for conviction; and intentional misrepresentation or omission of material fact in official written documents or official oral statements.  The BOI, by majority vote, recommended that Captain M_ (Applicant) be separated from the service with an Under Other Than Honorable Conditions characterization of service.    

010604:	GCMCA, CG, MCB Quantico, recommends that M_ (Applicant) be separated from the service and that the characterization of his service be other than honorable. 

010723:	Deputy Commandant for Manpower and Reserve Affairs, recommended to the Assistant Secretary of the Navy (M&RA) that Captain M_ (Applicant) be separated and that his service be characterized as Under Other Than Honorable Conditions by reason of unacceptable conduct.

010820:	Assistant Secretary of the Navy, (M & RA) approved Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010913 under other than honorable conditions due to unacceptable conduct (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 2.  When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable.  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.  Over a six month period the Applicant was involved with civilian law enforcement authorities on 3 occasions, resulting in 2 arrests and a citation.  Further, a Board of Inquiry determined that the Applicant had violated Articles 107 and 128 of the UCMJ.   The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issue 3.  The Applicant’s counsel infers that a military member cannot be separated for driving offenses.  As outlined in SECNAVINST 1920.2B, an officer may be processed for administrative separation due to a pattern of discreditable involvement with military or civilian authorities, whether or not such misconduct resulted in judicial or nonjudicial punishment under the UCMJ and/or conviction by civil authorities.  The summary of service clearly documents that unacceptable conduct was the reason the applicant was discharged.  No other Narrative Reason for Separation more clearly describes why the applicant was discharged.  To change the Narrative Reason for Separation or the Separation Code would be inappropriate.  Relief based on this issue 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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.      A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 13 Dec 1999 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 5420.174C 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 “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:

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