ex- 1STLT, 

Current Discharge and Applicant’s Request

Application Received: 20160726
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge:   SECNAVINST 1920.6C 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: END OF ACTIVE SERVICE
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive: NONE	Active:  USMC 20080530 – 20091106 COG (To accept commission)

Period of Service Under Review:
Date of Appointment:  20091107	Age:  
Years Contracted:  Indefinite
Date of Discharge:  20150309	Highest Rank:  1STLT
Length of Service:   Year(s)     Month(s)   25 Day(s)
Education Level:  	AFQT:  NFIR
Officer’s Fitness reports:  Available
Awards and Decorations (per DD 214):	Rifle  (2) Pistol  NMCAM (w/Combat V) CAR (Afghanistan) GWOTSM (Afghanistan) ACM (w/1 Star) NATO Medal ISAF-Afghanistan NDSM SSDR (2) 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

SCM:   SPCM:   CIVIL ARREST:   CC:     Retention Warning Counseling:  

NJP:  

- 20140123:	Article 133 (Conduct unbecoming officer) 
	Article 134 (General article) Patronizing a prostitute
	Awarded: PUNITIVE LETTER OF REPRIMAND    Suspended:      

20140206:  CG, 3d MarDiv reports NJP to CG, III MEF:  Recommends that SNO not be required to show cause for retention at a BOI.  

20140403:  CG, III MEF reports NJP to CMC:  Recommends that SNO not be required to show cause for retention and that the misconduct case be closed. 

20140614:  CMC to 1stLt:  Notification of Recommendation for Administrative Separation. 

20140624:  1stLt to CMC:  Acknowledges Notification of Recommendation for Administrative Separation. 

20140724:  CG, 3d MarDiv to SECNAV: Recommends Honorable Discharge. 

20140802:  CG, III MEF sends rebuttal to SECNAV: Recommends Administrative Separation with honorable Discharge. 

20141106:  DC, M&RA reports NJP to ASECNAV (M&RA): Recommends Administrative Separations and Honorable Discharge. 

20150109:  Assistant Secretary of the Navy (M&RA) approves DC, M&RA’s recommendation for separation
with an Honorable characterization by reason of Misconduct. 

20150309:  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 Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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 separation was improper in that the regulation in place then did not allow for an officer to be retained on active duty beyond his EAS for adverse administrative processing. 
2. 	The Applicant contends his discharge is administratively flawed in that he was never pending a court-martial.  
3. 	The Applicant contends the narrative reason for separation and the corresponding separation code are unduly harsh.  

Discussion

Date:  20180914		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 133 (Conduct unbecoming officer) 
Article 134 (General article)

Based on the  committed by the Applicant, the command administratively processed the Applicant for separation. When notified of administrative separation processing, the Applicant consulted with a qualified counsel and submitted a written statement.   

:  The Applicant contends his separation was improper in that the regulation in place then did not allow for an officer to be retained on active duty beyond his EAS for adverse administrative processing.  Similarly, the Applicant contends his discharge is administratively flawed in that he was never pending a court-martial.  To the latter point, the Applicant never had charges preferred against him at any court-martial.  That fact is irrefutable.  In support of the first assertion the Applicant refers to several authorities and dates as evidence.  A thorough examination of those authorities, overlaid by the procedural history here, do in fact present a confusing picture.  Ultimately, the NDRB determined that LEGADMINMAN 4009 gives that authority to retain an officer on active duty pending adverse administrative processing as soon as he is placed on the Officer’s Disciplinary Notebook (ODN).  Here, that should have happened in November of 2013—well in advance of the Applicant’s 1 May 2014 EAS.  Whether the Applicant was aware he was on the ODN, and therefore on “personnel hold,” is unclear.  Additionally, based upon the endorsements of his Major General Division Commander and his Lieutenant General show cause authority (written in February and April of 2014 respectively) recommending he be allowed to serve through his 1 May 2014 EAS it is reasonable to believe he did not.  Furthermore, if his Commanding Officers and their staffs were unaware he was placed on personnel hold it is reasonable to believe he in fact was not properly on personnel hold because he would not have had an EAS at all.  Lastly, on 25 April 2014, the Commanding Officer of Marine Corps Base Hawaii issued the Applicant 1 May 2014 separation orders.  It stretches credulity to believe every single one of those echelons missed the fact this officer was on personnel hold awaiting adverse administrative processing.   Nevertheless, he was retained on active duty pending adverse administrative processing despite the fact he was not notified of that crucial fact until June 2014.  The Applicant was held for the better part of a year while the process worked itself out.  During that time the Applicant acted professionally and ultimately was separated with an Honorable characterization of service.  While the NDRB believes the USMC did in fact have the authority to retain an officer on active duty following an ODN entry, it is unclear that occurred properly and with sufficient notice.  Consequently, there was insufficient justification to warrant relief based solely upon the procedural issues; we considered the Applicant’s case further in the context of equity below.     

:  The Applicant contends the narrative reason for separation and the corresponding separation code are unduly harsh.  
In support of this assertion the Applicant points to the fact that NJPs are by definition reserved for “minor offenses” and 
therefore no set of offenses adjudicated at an NJP could ever meet the requirements of a Commission of a Serious Offense 
basis at an administrative separation.   Clearly that is not the case.  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.  Based on the acceptance of 
guilt at NJP combined with the acknowledgement of serious misconduct in various personal statements seeking clemency from 
the command, the NDRB found that burden met and determined the Applicant’s narrative reason for separation to be proper.  

After dismissing that sub-issue, the NDRB once again considered the full record very closely.  The Applicant’s in-service performance was truly outstanding.  The Applicant’s willingness to admit guilt and accept punishment was noteworthy.  The Applicant’s continued outstanding dedication to duty during the very lengthy administrative processing reflected upon him very well.  Further, the Applicant had the support of several commanders and general officers who believed he deserved to finish out his initial obligation, to include the Applicant was given a Honorable characterization for his overall military service.  Lastly, upon vigorous questioning by the NDRB, it is clear the Applicant has continued his otherwise outstanding personal and professional conduct into his post-service life.  In light of all the evidence, and after close consideration of the totality of the circumstances, the NDRB determined the narrative reason for separation to be inequitable.   

Decision

In conclusion, after a thorough review of the available evidence, to include the Applicant’s issues and enclosures, summary of service,  record entries, and discharge process, the Board found the discharge was inequitable.  Therefore, the awarded characterization of service shall  HONORABLE, the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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: 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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.