ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090202
Characterization of Service Received:  
Narrative Reason for Discharge:  UNACCEPTABLE CONDUCT
Authority for Discharge:  MARCORSEPMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20010112 - 20010526  	Active:	
	  USMCR (School) 20010527-20041008
Period of Service Under Review:
Date of Appointment:  20041009	Age at Enlistment:  
Years Contracted:   Years   Months
Date of Discharge:  20081121	Highest Rank:  1stLt
Length of Service:    Year(s)    Month(s)  13  Day(s)
Education Level:  	MOS:  3002
Officer’s Fitness reports: All officer performance report were available to the Board for review.
Awards and Decorations (per DD 214):	Rifle  Pistol   (x2)            

Discharge Process

20080812:  NJP - Article 89 (Disrespect)
                             Article 90 (Disobey a lawful order) 
                             Article 93 (Maltreatment of subordinates)
	Awarded - FOP of one half month’s pay per month for one month and a Punitive Letter of Reprimand.

20080812:  Applicant did not appeal her NJP.

20080826:  Applicant submitted resignation request.

20080829:  Commanding General, 3d Marine Division requested approval of resignation.

20080909:  Commanding General, III Marine Expeditionary Force, endorsed the Applicant resignation.

20080822:  Applicant submitted 

20081010:  Commandant of the Marine Corps, recommended to the Assistant Secretary of the Navy (Manpower and Reserve 
                   Affairs) that the  with characterization of service as General (Under
                   Honorable Conditions)

20081016:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of
                   Resignation- Unacceptable conduct, with characterization of service as 

20081121:  Applicant discharged this date.

Types of Documents Submitted/reviewed

Related to Military Service: 
              DD 214:  	                            Service/Medical Record:             Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6B (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 Mar 97.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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 89 (Disrespect), Article 90 (Disobey a lawful order) and Article 93 (Maltreatment of subordinates).

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

Applicant’s Issues

1.  Isolated incident.
2.  Was not informed of her rights to have character witnesses speak on her behalf at the NJP hearing.
3.  Did not receive any counseling from my reporting senior (RS) pertaining to their expectation of me.
4.  There were falsified reports as well as omitted information that lead to the hearing itself.
5.  The last RS had a personal dislike for the Applicant.
6.  The last RS had a personal dislike for women.
7.  Requested Mast with only partial results.
8.  Filed an EO complaint with 3rd Marine Division EO advisor, no action taken.  

Decision

Date:  20090430		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  UNACCEPTABLE CONDUCT.

Discussion

:  ()  . The Applicant contends she is entitled to a discharge upgrade due to it being an isolated incident, “That was my first and only offense.”   In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service was marred by one NJP for a violation of the Uniform Code of Military Justice (UCMJ): Article 89 (Disrespect), Article 90 (Disobey a lawful order) and Article 93 (Maltreatment of subordinates).  Violations of Article 89, Article 90 and Article 93 are considered serious violations, especially for a Marine Corps officer who is entrusted with the expectation and confidence of obeying orders and safeguarding their subordinates.  These violations could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial.  The NDRB advises the Applicant certain serious offenses, even though isolated, warrant separation from the service in order to maintain proper order and discipline.  The command did not pursue a punitive discharge but instead the Command and Commandant of the Marie Corps accepted the Applicant’s request for resignation.  The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate   

Issue 2:  ()  .  The Applicant contests she was not informed of her rights to have character witnesses speak on her behalf at the NJP hearing.  In reviewing her discharge, the letter from the Commanding General, 3d Marine Division, dated 28 Aug 2008, in paragraph 5 states “The accused was present at the hearing and was accorded all rights including the right to consult with a lawyer.  First Lieutenant G. accepted the imposition of NJP and did not demand trial by court-martial.  NJP was imposed in accordance with section 0110 of reference (c), and Article 15 of reference (d)”; and paragraph 6 “First Lieutenant G. has been afforded the opportunity to read the report of NJP in this case and to consult with counsel.  First Lieutenant G. elected not to appeal the punishment awarded.”  The Applicant failed to provide any evidence to support her claim and documentation in the record attest to the fact she was accorded all her rights.   The NDRB determined this issue was without merit based on the documented evidence in the record.   

Issue 3:  ()  .  The Applicant contests she did not receive any counseling from her reporting senior (RS) pertaining to his expectation of what was expected from her.  In reviewing the discharge, the statements provided by the RS and concurred with by the  Reviewing Officer (RO) on the Applicant’s Fitness Report on 20071101-20080321, stated the Applicant was counseled by the Battery Commander and other senior officers with resistance and animosity.  In addition, “SNO was given numerous written and verbal counseling’s on lack of judgment”.   The Applicant did not produce any evidence to support the contention of not having any kind of counseling from her RS and her statements alone do not overcome the government’s presumption of regularity in this case.  In fact, the documentation in the record supports the exact opposite of her claim.  The NDRB determined the awarded discharge characterization was appropriate; an upgrade would be inappropriate.     

Issues 4-8:  ()  . The Applicant implies she was unjustly mistreated and had no support from her command as stated on issues 4 thru 8.  Once again, the government enjoys a presumption of regularity in the conduct of its affairs and the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention of the issues brought before the Board.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The NDRB determined without such documentation the claims of the Applicant are without merit.  The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.   
 
For the Applicant’s edification, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  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 help support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicants statement on the DD Form 293 and some reference letters, the Applicant didn’t provide any additional information to warrant an upgrade.  To warrant an upgrade the Applicant’s post-service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  Should the Applicant obtain additional evidence or post service documentation she may wish to apply for a personal appearance.  There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD 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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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