ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090401
Characterization of Service Received:    
Narrative Reason for Discharge:    
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to:  
	Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20010530 - 20010723  	Active:		20010724 - 20041214

Period of Service Under Review:
Date of Current Enlistment:  20041215	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20060818	Highest Rank:  
Length of Service:    Year(s)    Month(s)  04  Day(s)
Education Level:  	AFQT:  69
MOS:  0431/8411
Fitness Reports:  

Awards and Decorations (per DD 214):	      

Periods of UA/CONF:  UA:  20060630-20060708 (9 days) IHCA 

NJP:  

SCM:  

SPCM:  

ARREST:  
- 20060629:	Charge: Aggravated battery (Felony Domestic Violence).  Trial date pending at time of discharge.

CC:  

Retention Warning Counseling:  

- 20060209:	For unauthorized absence from appointed place of duty on 20060203.  You were unaccounted for from 0830 until 1100 on this date.  This is absolutely and unacceptable from a young Sergeant of Marines and will not be tolerated.

- 20060708:	For involvement in a domestic violence charge that caused you to be detained by the civilian authorities of St. Lucie County Sheriffs Department.

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.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
1 September 2001 until Present.

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 128 (Assault). 

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

Applicant’s Issues

1.  The Applicant believes his discharge was based on incomplete information.	
2.  The Applicant believes his discharge was unjust because he was returned to work against the recommendations of medical staff.
3.  The Applicant believes his discharge was unjust because he was without access to a military lawyer.
4.  The Applicant believes his post-service accomplishments are worth consideration.

Decision

Date:  20100415                    Location: Washington D.C.          Representation: 

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

Discussion

The 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 did complete a thorough review of the circumstances which led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 counseling warnings and an arrest by civilian authorities for aggravated battery (Felony domestic violence).  Based on the offense committed by the Applicant,  command administratively processed  for separation.  When notified for Administrative Separation Processing, the Applicant waived  rights to consult with qualified counsel and to request an Administrative Board.  He did elect to submit a written statement to the separating authority for consideration.  The Applicant was discharged accordingly with an Under Other Than Honorable Conditions characterization.

:  (Decisional) ()  .  The Applicant contends his discharge was based on incomplete information.  Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  The Applicant sent a court document that stated “No Information” about his case.  To the NDRB, this court document does not satisfy the presumption of innocence or that the Applicant was cleared of all charges.  The Applicant could have sent a document that shows that the case was dismissed of all charges and a criminal background check for that specific jurisdiction.  The injury sustained by the victim was heinous and the evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.  

Issue 2:  (Decisional) ()  .  The Applicant believes his discharge was unjust because he was returned to work against the recommendations of medical staff.  The NDRB acknowledged the recommendations by the medical staff with regards to his alcohol abuse treatment and mental health issues.  The Marine Corps began an administrative process to grant the Applicant relief for the good of the service and transfer him back to the Fleet Marine Forces (FMF) from recruiting duty.  The Applicant’s package was approved up the chain of command with a final approval message dated 301544Z May 06.  Unfortunately, the Applicant requested to revoke his request for relief for the good of the service on 29 May 2006.  He personally requested the opportunity to complete his tour on recruiting duty.  The NDRB opined that his mental well being had improved and that his request was done freely, with no coercion.  If it were not for his request for revocation, he was cleared to be transferred back to the FMF that summer.  Relief denied.     

Issue 3:  (Decisional) ()  .  The Applicant believes his discharge was unjust because he was without access to a military lawyer.  The Applicant was provided the opportunity to consult with qualified counsel, to submit a written statement and to request an Administrative Board.  The Applicant chose not to consult with counsel. He made that decision even more clear by writing on his Acknowledge of Rights notification  “Do not desire to consult with counsel.”  Had he chosen differently, the command would have been required to provide him counsel; whether they sent counsel to the jail or waited for the Applicant to be released in order to seek counsel.  The NDRB determined that the Applicant had ample opportunity to obtain counsel and freely chose not to exercise his rights.  Relief denied.  

Issue 4:  (Decisional) ()  .  The Applicant believes his post-service efforts are worthy of consideration.  Although the Applicant attained numerous character references that attest to his conduct and character in the community since he was discharged from the Marine Corps, he failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have produced evidence as stated in the Post-Service Conduct paragraph in the addendum.  The Applicant's efforts need to be more encompassing.  The Applicant should provide documentation which could include but not limited to:  letters of personal references and verifiable employment record/letter of recommendation from his employers; evidence of a drug free life style (completion of rehab/proof he attended Narcotics Anonymous or AA meetings); and certification of non-involvement with civil authorities, evidence of financial stability (home ownership/home rental history, credit card payments); college transcripts; documentation of community/church service and if married, a marriage certificate.  The Applicant should be aware completion of these items alone 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 mitigates the reason for the characterization of discharge.  Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

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.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance 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 Association of Service Disable 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 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 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:  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 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 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-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