ex- MAJ, 

Current Discharge and Applicant’s Request

Application Received: 20230810
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (OTHER)
Authority for Discharge:   MARCORSEPMAN 4104 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: SECRETARIAL AUTHORITY
Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	 20010708 - 20040611               	Active:	 20010220 - 20010707  

Period of Service Under Review:
Date of Appointment:  20050501	Age at Commissioning:  23
Years Contracted:  Indefinite
Date of Discharge:  20220321	Highest Rank:  MAJ
Length of Service:  16  Year(s)  10  Month(s)  21  Day(s)
Education Level:  16	AFQT:  79
Deployment/Operation: 

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle (x2) Pistol (x3) AMSF(x4) NMCCM(x2) NUC NAVY "E" SMCRM NDSM ICM(w/ 2 Gold Stars) GWOTEM GWOTSM SSDR(x5) LoA(x2) 

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

SCM:    SPCM:    CIVIL ARREST:   CC:     NJP:  NONE

Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 010220 UNTIL 010616”

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.  Paragraph 6210.7, Misconduct of the Marine Corps Separation and Retirement Manual, (MCO 1900.16 CH 2), effective 15 February 2019 until present.

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.	In addition to requesting changes to his character of service, separation authority, separation code, and narrative reason for separation, the Applicant requests to remove all references to misconduct in his official military record, to award him constructive active duty service credit retroactive to the date of separation, transfer him to the retired list, award him back pay and allowances from the date of separation to the date of the NDRB’s decision, and to convene a Special Selection Board to consider his selection to Lieutenant Colonel.
2.	The Applicant contends legal error concerning his retirement eligibility.
3.	The Applicant contends that procedural errors substantially prejudiced his Board of Inquiry (BOI).
4.	The Applicant contends factual and legal insufficiency of the evidence presented at the BOI that led to the findings of misconduct.
5.	The Applicant contends he was innocent of the charges for which he was discharged.

Discussion

Date:  20230927		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 no retention warning counseling and no misconduct resulting in nonjudicial punishment or court-martial.

Issue 1:  In addition to requesting changes to his character of service, separation authority, separation code, and narrative reason for separation, the Applicant requests to remove all references to misconduct in his official military record, to award him constructive active duty service credit retroactive to the date of separation, transfer him to the retired list, award him back pay and allowances from the date of separation to the date of the NDRB’s decision, and to convene a Special Selection Board to consider his selection to Lieutenant Colonel.

The NDRB has no authority to remove, destroy, delete, or omit information from military records, nor to make decisions regarding the awarding of pay or allowances, nor decisions concerning eligibility for retirement or promotion.  Only the Board for Correction of Naval Records (BCNR) can grant these types of changes.  The Applicant may appeal/petition the 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.

Issue 2:  The Applicant contends legal error concerning his retirement eligibility.

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.  The Applicant contends that the government did not properly notify the Applicant to request permission from DC(M&RA) to consider retirement grade and characterization of service, arguing that the Applicant had more than 21 years of service and was eligible for retirement.  This is a nondecisional issue that does not form a basis upon which the NDRB can grant relief.  Only the BCNR can make a determination regarding retirement eligibility.  

Issue 3:  The Applicant contends that procedural errors substantially prejudiced his Board of Inquiry (BOI).

In February 2016, civilian authorities investigated the Applicant for sexually abusing his eight-year-old stepdaughter on multiple occasions between January 2014 and February 2016, based on allegations brought forth by his wife’s ex-husband.  The Naval Criminal Investigative Service (NCIS) also launched a parallel investigation.  On 18 November 2016, the civilian District Attorney declined to prosecute, by which time the Applicant had filed for divorce, which was finalized on 22 June 2017.  On 14 February 2019, Commanding General, I Marine Expeditionary Force (CG, I MEF) referred the case to a general court-martial, but withdrew the charges without prejudice on 9 October 2020.  On 20 December 2020, CG, I MEF ordered the Applicant to show cause for retention at a Board of Inquiry for five specific reasons for separation: violations of Article 120(b) (Rape of a child), Article 120(b) (Sexual abuse of a child), Article 134 (Viewing child pornography), Article 134 (Possessing child pornography), and Article 133 (Conduct unbecoming an officer).  The BOI, held on 3 March 2021, found that the violations of the first three articles were not substantiated, but substantiated the Applicant’s misconduct for violations of Article 134 (Possession of child pornography) and Article 133 (Conduct unbecoming an officer) for the same offense.  Substantiation of the Article 134 violation rested upon the discovery of seven thumbs.db files on one of several electronic devices that were turned over to NCIS by the Applicant’s estranged wife in 2018 and identified as belonging to the Applicant.  One of the external hard drives contained 483 videos of legal pornography and one questionable video that was not confirmed as child pornography by the National Center for Missing and Exploited Children (NCMEC) or any other agency, but also contained six thumbs.db files that were themselves not visible or playable from the drive without special software that was not found on any of the Applicant’s devices, but indicative of files that were once contained in the same folder on the drive or in the folder from which it had been copied and were listed with NCMEC as child pornography.  Based upon the existence of these files, none of which was more recent than October 2009, the Applicant was found to be in violation of possessing child pornography and conduct unbecoming an officer and recommended for separation with an Under Other Than Honorable Conditions discharge.

The Applicant argues that the Legal Advisor committed error by allowing a BOI member whose wife is a victim of child sexual assault to remain a BOI member, thereby preventing the Applicant from receiving a fair and impartial hearing.  The NDRB concedes that the assignment could have had the appearance of a conflict of interest and should have been avoided, but did not find that the decision allowing the officer to remain on the BOI constituted a procedural error that violated the Applicant’s rights and was within the authority and purview of the Legal Advisor to so decide.

Issues 4-5:  The Applicant contends factual and legal insufficiency of the evidence presented at the BOI that led to the findings of misconduct.  The Applicant contends he was innocent of the charges for which he was discharged.  

The NDRB Minority noted that the Applicant’s Board of Inquiry (BOI) found that the Applicant (a USMC Major, a mere ~3 years from a vested military retirement) should be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge by a vote of 3-0.  Further, the Applicant’s BOI found by a vote of 3-0 the preponderance of the evidence substantiated the Applicant possessed child pornography and was guilty of conduct unbecoming an officer.  In addition to finding the BOI had sufficient evidence (albeit using preponderance of the evidence rather than beyond a reasonable doubt standard) to substantiate its findings, the Minority also noted the dissenting opinion in the Applicant’s BOI.  In short, the Minority concedes the Government did not show beyond a reasonable doubt the Applicant committed the alleged misconduct, but the Minority holds that the preponderance of evidence was sufficient to uphold the BOI’s determination.  Further, the Minority did not find the Applicant’s testimony and evidence before the NDRB sufficient to rebut that he did not possess child pornography and/or commit conduct unbecoming an officer.

In contrast, the Majority of the NDRB agreed that the evidence of misconduct against the Applicant was less than convincing.  The Majority took note that civil authorities and NCIS both chose not to pursue charges against the Applicant, when charges were first levied in 2016, based on insufficient evidence (or inferred witness willingness to testify).  Court-martial charges were also dismissed in 2020 after much of the evidence against the Applicant was ruled inadmissible.  Even after the BOI was convened in which the previously inadmissible evidence was again considered, this time under the less stringent preponderance of the evidence standard, the BOI did not find sufficient evidence that the Applicant had committed the more serious crimes of child rape or sexual abuse of a child.  The BOI also found the allegation of viewing child pornography to be unsubstantiated, finding only that he had possessed child pornography.  While the Applicant and defense did not dispute that the thumbs.db files existed, they offered the reasonable explanation that the files were embedded unbeknownst to him in the folders of legal pornography that he had received from other service members while deployed to Iraq.  The Majority of this Board also found it unlikely that a habitual viewer of child pornography would have only six or seven files out of nearly 500 files of legal pornography, none of which was more recent than 2009, on multiple devices (none of which were password protected) that were available to the Applicant until withheld by his wife in 2016 before being turned over to NCIS in 2018.  The Majority also pondered why would no such files be placed on any of the drives/devices between 2009 and 2016?  The Majority also pondered the absence of evidence of the special software required to view such hidden files was found in possession of the Applicant on any of the devices, further challenging the assertion that his possession was knowing.  While the entire Board acknowledges the heinous nature of all the crimes alleged to have been committed by the Applicant, it noted that all but one of those charges were found by multiple investigative and prosecutorial entities to be unsubstantiated, and had serious concerns as to the sufficiency of the remaining charge, the likelihood that the Applicant knowingly possessed child pornography, thereby calling into the question the Applicant’s guilt, which he continues to refute.  

When reviewing discharges, the Board considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  Further, an honorable discharge characterization does not require flawless military service; many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct.  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.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. 

In this case, the Majority found the Applicant’s service generally meets the standard of acceptable conduct and performance for naval personnel.  In making its determination, the Board considered the Applicant’s overall capacity to serve; his entire military performance and conduct, to include his earning of two Letters of Appreciation, five Sea Service Deployment Ribbons, the Global War on Terrorism Service and Expeditionary Medals, an Iraq Campaign Medal with two service stars, two Navy and Marine Corps Commendation Medals and four Strike/Flight Air Medals.  In evaluating the Applicant’s reported misconduct, the Board considered the reasonable likelihood that he is innocent of the alleged crimes, as previously discussed.  Moreover, the Board considered five character references from the Applicant’s wife, as well as a Navy flag officer, two Marine colonels, and a Navy commander, three of whom were in the Applicant’s direct reporting chains during portions of the investigations into alleged crimes, including his commanding officer at the time leading up to his Article 32 hearing who was thereby fully informed of the NCIS case against him and SJA deliberations, and who remains convinced of the Applicant’s innocence.  All commended the Applicant not only for his honor and character, but for his continued high-performance even while being investigated.  The Applicant also enjoyed strong fitness reports, up through his final reporting period covering June to December 2021.   The Majority found these facts, circumstances and attestations to be compelling evidence that the Applicant had not indeed committed the offenses for which he was charged and that his discharge was therefore inequitable.  Additionally, the Majority took note that the Applicant had no other misconduct in his over eighteen years of active service.  Consequently, the Majority voted that a change in characterization of service was appropriate.  

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  HONORABLE, the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF1.  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

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.