ex- MAJ, 

Current Discharge and Applicant’s Request

Application Received: 20230124
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (OTHER)
Authority for Discharge:   SECNAVINST 1920.6C 

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

Summary of Service
Prior Service:
Inactive: USMCR (OCAN)19980531 - 20000510  	Active:	

Period of Service Under Review:
Date of Appointment:  20001006	Age:  32
Years Contracted:  Indefinite
Date of Discharge:  20160222	Highest Rank:  MAJ
Length of Service:  15 Year(s)     Month(s)   17 Day(s)
Education Level:  	AFQT:  
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Rifle  (5) Pistol  (7) NMCCM (3) PUC-N NUC NMUC NDSM GWOTEM (Bahrain) GWOTSM SSDR (3) LoA (2) MM  

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

SCM:    SPCM:    CIVIL ARREST:   CC:   Retention Warning Counseling:  NONE

NJP:  1

- 20140516:	Article 133 (Conduct unbecoming officer) Adultery 
	Awarded: PUNITIVE LETTER OF REPRIMAND   Suspended:  NONE  

Administrative Corrections to the Applicant’s DD 214

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

  “UNDER HONORABLE CONDITIONS (GENERAL)”
  “SECNAVINST 1920.6C”
	
The NDRB will recommend to 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 Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant contends that his post service conduct warrants consideration for an upgrade.
2.	The Applicant contends his in-service conduct warrants an upgrade to Honorable.
3.	The Applicant contends his discharge was unjust because the only witness misused his position as a Military Police Officer.
4.	The Applicant contends his discharge is inequitable because he feels the NJP was punishment enough

Discussion

Date:  20230710		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) 

Issue 1.	The Applicant contends that his post service conduct warrants consideration for an upgrade.

The Applicant suggests his post-service achievements as evidenced by his college attendance warrants consideration for an upgrade.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  However, post-service conduct does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  The Board determined that the characterization of service received was appropriate considering the length of service and UCMJ violations.

Issue 2.	The Applicant contends his in-service conduct warrants an upgrade to Honorable.

The Applicant states his character is demonstrated by the totality of his 16 years of commissioned service.  The Applicant was administratively separated; not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, 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. 

Issue 3. The Applicant contends his discharge was unjust because the only witness misused his position as a Military Police Officer.

The Applicant contends that his misconduct was only discovered after an off duty Military Police Officer misused the database containing information of all vehicles registered on base.  While the Applicant was out with Capt P., a woman not his wife, the Applicant’s vehicle information was taken by a Capt X without his consent or knowledge.  The Applicant contends that was a misuse of power by Capt X while in an off duty status. 

Capt X stated that the Applicant was acting in a very strange manner while with Capt P.  Because the Applicant looked as though he was a member of the military, Capt X determined that it was within his duty to run the Applicant’s information against the database.  When the information showed that the two cars belonged to two different military members and that these two individuals were likely married to someone else, Capt. X then turned this information over for investigation. 

While the Applicant makes an interesting argument alluding to the violation of the 4th and 14th amendments, the Applicant fails to show how his due process rights were violated.  The Applicant contends that because Capt X was off duty and because their interaction was random, Capt X had no reason to obtain the Applicant’s information.  Although Capt X was on liberty he is still required to uphold the rules, regulations, and norms of the United States Marine Corps.  Being a Marine is not a 9-to-5 job; being a Marine requires continuous compliance with the UCMJ and other rules and regulations.  If a Marine were able to do whatever he or she wanted while in an off duty status, how could the Corps inforce such rules as uniform regulations, use of drugs such as marijuana which may be legal in some areas, or even speeding tickets, much less crimes of moral turpitude such as adultery. 

Just as Senior Enlisted Marines correct Junior Marines while out in town, Capt. X was upholding the norms and rules of the Marine Corps.  The NDRB determined that neither the Applicant’s duty status nor Capt X duty status has any bearing on the actions taken by Capt X.  Finally, as to the 4th Amendment, what a person knowingly exposes to plain view in the public is not protected; in other words, Capt X observed the Applicant out in public with Capt P. 

Issue 4. The Applicant contends his discharge is inequitable because he feels the NJP was punishment enough.

The Applicant contends that his separation of a minor infraction was “excessive” and that the Applicant’s isolated misconduct did not affect good order and discipline.  The Applicant was found guilty of Article 133, Conduct Unbecoming of an Officer, at nonjudicial punishment.  The Applicant later had a Board of Inquiry (BOI) where he was able to state his case and argue for his ability to remain in the Marine Corps.  Here, the BOI determined that the Applicant should be discharged with an Under Honorable Conditions (General) characterization of service.

The Applicant states that his misconduct only happened on one occasion and therefore his separation for this isolated act was unduly harsh.  The Applicant offers, “It was not something that spanned over months or years- it was one single dated, 28 January 2014.  Certainly, a one-time lapse in judgment is not something that outweighs the remainder of his career.”  This statement is in direct contrast to the Staff Judge Advocate’s review of the case.  The Staff Judge Advocate writes that “on diverse occasions between 23 January 2014 and 6 February 2014, [Applicant] had committed a crime of moral turpitude by wrongfully engaging in an unduly familiar relationship.”  The statement that the Applicant’s adulterous relationship spanned the months of January and February are found throughout the record.  While the Applicant may have plead guilty to a single act on a single day, the record shows that this was not an isolated incident.

The Applicant further contends that his misconduct in no way harmed good order and discipline.  This is supported by the statements made by Capt P. during the investigation and BOI.  Capt P. stated that she did not know the Applicant and that she did not hold any ill will toward the Applicant.  The Applicant states that because there was no relationship between Capt P. and himself and that there was no ill will between the two, good order and discipline was not affected. 

The NDRB failed to find merit in this argument.  Officer misconduct is a serious issue and erodes good order and discipline throughout the unit.  The fact that the Applicant and Capt P. were not in the same unit and therefore good order and discipline remained is misguided.  The NDRB determined that because of this, not only was the good order and discipline affected at the Applicant’s unit but also at Capt P.’s unit.  The NDRB further determined that the fact that Capt P. did not know the Applicant and that he held no ill will toward the Applicant irrelevant in the light of the good order and discipline argument.

The Applicant was recommended for separation at his BOI for conduct unbecoming after being found guilty at nonjudicial punishment.  The BOI’s recommendation is just that, a recommendation.  The Deputy Commandant of the Marine Corps for Manpower and Reserve Affaires has the ultimate authority to discharge the Applicant in this case.  After a thorough review of the details of this case, the Deputy Commandant determined that separation was appropriate.  Although the Applicant argues that his actions were minor and had no effect on good order and disciple, the NDRB determined that Applicant’s separation was proper and equitable.

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 gkm1. 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

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) 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.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by 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.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), 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.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, 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 (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/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 [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  (See www.va.gov/discharge-upgrade-instructions).  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost – including inpatient or crisis residential care for up to 30 days and outpatient care for up to 90 days.  Veterans do not need to be enrolled in the VA system to use this benefit.  In order to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations. 

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 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.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

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 that 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.  Additionally, Veterans in acute suicidal crisis can go to any VA or non-VA health care facility for emergency health care at no cost; you can use this benefit regardless of your discharge status, or enrollment in VA health care.  In order to find the nearest VA office to receive assistance, go to https://www.va.gov/find-locations/?facilityType=health.