ex- Capt, 

Current Discharge and Applicant’s Request

Application Received: 20200305
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (OTHER)
Authority for Discharge:   SECNAVISNT 1920.6C 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: OMIT “Misconduct”
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive: NONE		                                           Active:	 (MID) 20080702 – 20120528 (To accept commission) 

Period of Service Under Review:
Date of Appointment:  20120529	Age:  23  
Years Contracted:  Indefinite
Date of Discharge:  20190215	Highest Rank:  CAPT
Length of Service:   Year(s)     Month(s)   17 Day(s)
Education Level:  	AFQT:  N/A
Officer’s Fitness reports:  Available
Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  (4) Pistol  (3) NMCAM NMUC NDSM ACM (w/1 Star) GWOTSM SSDR (3) NATO Medal-ISAF Afghanistan CoA (2) 

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

NJP:  

- 20180411:	Article 92 (Failure to obey order, regulation) 
	Article 133 (Conduct unbecoming officer)
	Article 134 (General article) Adultery
	Awarded: Punitive Letter of Reprimand  ($1500 for 2 months)     Suspended:      

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

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:  Major Ramon Gonzalez	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 26 November 2013 until present.

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.

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

Applicant’s Issues

1. The Applicant seeks to omit his misconduct as his discharge characterization narrative. 
2. The Applicant contends that his discharge is inequitable because his characterization was harsher than others. 
3. The Applicant contends that his in service achievements and contributions are worthy of consideration for an upgrade.  
4. The Applicant contends that his discharge is unjust as it relates to a single isolated incident in what otherwise is a seven year
     record of honorable service. 	
Discussion

Date:  20201103		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 92 (Failure to obey order, regulation) 
Article 133 (Conduct unbecoming officer)
Article 134 (General article)

:  The Applicant seeks to omit his misconduct as his discharge characterization narrative.

The Applicant seeks to omit misconduct as the narrative for his discharge characterization being that his submission for a  resignation was approved. Within the record of evidence the Applicant acknowledges his resignation request in lieu of a Board of Inquiry could result in a General discharge. This request for resignation was approved and the Applicant was awarded a General characterization of service. A narrative reason for discharge states just that, the reason for a service member’s discharge. In this case the Applicant requested to resign in lieu of further administrative action in relation to the substantiation of facts regarding the misconduct he committed. Thus the Applicant’s resignation was approved for cause and for no other reason. The misconduct narrative provides the reason for why the Applicant was discharged and in this case it was because of the misconduct he committed which could have been addressed with administrative action’s more severe and punitive. Relief for this issue is denied. 

Issue 2:  The Applicant contends that his discharge is inequitable because his characterization was harsher than others.

The Applicant contends his discharge was inequitable because another servicemember was punished less harshly for similar misconduct.  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 Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.  Relief denied.

Issue 3:  The Applicant contends that his in service achievements and contributions are worthy of consideration for an upgrade.  

The Applicant states his character is demonstrated following the Command Investigation pertaining to his adultery and by taking full responsibility for his actions. In addition the Applicant highlights the receipt of a Navy Achievement Medal and submitted fitness report evaluations citing positive performance and his contributions while serving in support of combat operations and roles of increasing responsibility. The Applicant’s request for resignation was approved for cause and he was granted a General characterization. The NDRB determined that the positive aspects were accounted for in the characterization of discharge as per the definition of a General discharge and through the agreement of the Applicant’s request to separate in lieu of further administrative action. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the period of service under review. 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 accomplished performance and positive contributions were accounted for, 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.

Issue 4:  The Applicant contends that his discharge is unjust as it relates to a single isolated incident in what otherwise is a 
               seven year record of honorable service. 	

The Applicant contends that his discharge characterization is not equitable because it is levied on a single isolated incident in a period of service of close to seven years with no other adverse action. To highlight this claim the Applicant provided letters of reference that attest to his character and performance, positive fitness report evaluations that span his tenure of service along with training accomplishments and performance awards. While the Applicant’s record does only reflect one disciplinary action for violations of UCMJ Articles 92, 133 and 134 his behaviors were not isolated to a single point in time or event. Rather through the information and evidence the Applicant provided himself his charges reflect violations over a period of time that included continuous digressions that reflect a lack of personal and professional commitment, the gross lack of judgement on multiple occasions, a complete disregard for good order and discipline and a significant lack of integrity that can be substantiated by lies he made to subordinates and his own personal family. Thus while the Applicant associates his misconduct to a single disciplinary hearing to which the charges align to a self-defined single subject the Board did not identify an isolated incident. Per the information provided by the Applicant, and that within his OMPF, it can be substantiated that he participated in adulterous relationships with two different women and to which one he engaged in sexual intercourse on multiple occasions; demonstrated conduct unbecoming of a commissioned officer by lying to subordinates on multiple occasions in an effort to prevent discovery of his adulterous activities and sexual relationship with a subordinate; consumed alcohol and fraternized with subordinates on multiple occasions; violated the direction of a Military Protection Order issued to him by his Commanding Officer; and abused the integrity and trust of command. The Board did not identify the Applicant’s misconduct as isolated being that his digressions occurred on multiple occasions over an eight month period of time. Isolated acts occur at a single point of time and substantiate a single event which is not the case for the misconduct committed by the Applicant. Relief is denied. 

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. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  In this case, the Applicant’s service was honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  In making its determination, the Board reviewed the complete record of evidence along with the letter of reference. While the Applicant contends that his overall service was honorable the Board viewed his misconduct as egregious and incapable of being minimized to a perspective that reflects an isolated incident. Serious tenets of the trust and confidence afforded to a commissioned officer were violated at multiple times and levels. In this case in particular the Applicant held a position of command when he engaged in an inappropriate and sexual relationship with a subordinate.  This in itself reflects unselfish behavior with complete disregard for the privilege and trust afforded to Commanders. In addition he lied to subordinates in an effort to protect himself which jeopardizes the credibility of the Officer Corps as the discovery of the misconduct involved and drew the attention of enlisted personnel.  The Board determined that the Applicant had already been afforded mitigation in the case of his misconduct through the awarding of a General discharge and agreement to separate in lieu of further administrative action. 

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT (OTHER) with a corresponding separation code of  BKM1. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  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.