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USMC | DRB | 2006_Marine | MD0601044

Original file (MD0601044.rtf) Auto-classification: Denied

ex-LCPL, USMC
MD06-01044

Current Discharge and Applicant’s Request :

Application Received:                               20 060804
Narrative Reason for Separation:                           COMMISSION OF A SERIOUS OFFENSE/WAIVED BOARD
Character of Service:
Discharge Authority :                                MARCORSEPMAN 6210.6
Last Duty Assignment/ Command at Discharge:       8THESBN 2DFSS G

Applicant’s Request:
         Narrative Reason change to:               NONE REQUESTED
         Characterization chang e to:
         Review Requested :
Representation:

Decision:

Date of Decision:                                            200706 14
Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES
Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:         EQUITABLE

By a vote of the Characterization shall UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of the Narrative Reason shall MISCONDUCT

Summary of Service :

Prior Service:
Inactive: USMC R (DEP)                               19940916 - 19950809
Active: USMC                                19950810 - 19981023
         USMC                                         19981024 - 20040729 HON
Period of Service Under Review :
Date of Enlistment:                                 20040730
Years Contracted :                                   ;
Date of Discharge:                                  20051012
Length of Service:                                  01 Yrs 02 Mos 13 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:

Education Level:
Age at this Enlistment:
AFQT:                                                 55
MOS:                                                   0621
Highest Rate/Rank:                                   SSGT

Fitness reports were available to the board for review for service as E-5/Sergeant or higher:

Awards and Decorations (as listed on the DD Form 214):
MARINE CORPS GOOD CONDUCT MEDAL (W/2 BRONZE STARS ) , JOINT SERVICE ACHIEVEMENT MEDAL, JOINT SERVICE COMMENDATION MEDAL, NAVY AND MARINE CORPS ACHIEVMENT MEDAL, IRAQ CAMPAIGN MEDAL, SEA SERVICE DEPLOYMENT RIBBON W/3 BRONZE STARS), GLOBAL WAR ON TERRORISM SERVICE MEDAL, KOREAN DEFENSE SERVICE MEDAL, NATO MEDAL ( W/1 BRONZE STAR), KOSOVO CAMPAIGN MEDAL, NATIONAL DEFENSE MEDAL (W/ 1 BRONZE STAR), ARMED FORCES EXPEDITIONARY MEDAL (ADRIATIC SEA), HUMANITARIAN SERVICE MEDAL, ARMED FORCES SERVICE MEDAL, NAVY UNIT COMMENDATION, CERTIFICATE OF APPRECIATION (3 ^RD AWARD) , MERITORIOUS MAST, RIFLE EXPERT BADGE (3 ^RD AWARD), PISTOL SHARPSHOOTER BADGE .

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20050729:        Memorandum of pretrial agreement.

20050801:        Pretrial agreement approved.

20050803 :        Summary Court-Martial.
         Charge I : V iolation of the UCMJ, Article 92 .
         Specification: From about 20050306 to about 20050530 was derelict in the performance of duties in that he willfully failed to follow proper weapons handling procedures by removing his M9 service pistol from his holster and waving it in the air around other Marines. Plea: Guilty. Findings: Guilty.
         Charge II: Violation of the UCMJ, Article 93:
         Specification 1: On or about 20050301 and on or about 20050530, did maltreat Lance Corporal R_B_ by pointing a loaded 9MM pistol at him. Plea: Not Guilty. Finding: Not Guilty.
         Specification 2: On or about 20050301 and on or about 20050330, did maltreat Corporal C_ H_ by pointing a loaded 9MM pistol at him. Plea: Not Guilty. Finding: Not Guilty.
         Charge III: Violation of the UCMJ, Article 107.
         Specification 1: On or about 20050623, with intent to deceive, make to First Lieutenant M_ D. S_ an official statement, to wit: “I have never intentionally aimed my weapon at any Marine”. Plea: Not Guilty. Finding: Not Guilty.
         Specification 2: On or about 20050716, with intent to deceive, make to Special Agent R_ O_ , Naval Criminal Investigative Service, an official statement, to wit: “In no circumstances did I ever intentionally point my pistol at any of my Marines”. Plea: Not Guilty. Finding: Not Guilty.
         Charge IV: Violation of the UCMJ, Article 128:
         Specification 1: On or about 20050301 and on or about 20050501, commit an assault upon Lance Corporal R_ B_ , by pointing at him with a dangerous weapon, to wit: a loaded firearm. Plea: Not Guilty. Finding: Not Guilty.
         Specification 2 : On or about 20050301 and on or about 20050501, commit an assault upon Corporal C_ H_ , by pointing at him with a dangerous weapon, to wit: a loaded firearm. Plea: Not Guilty. Finding: Not Guilty.

        Sentence: Forfeiture of $ 1614 , restriction for 6 0 days, reduction to E- 5 .

20050811 :        Sentence approved and ordered executed.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        20050827
Basis for Discharge :                                MISCONDUCT DUE TO COMMISSION OF A SERIOUS OFFENSE
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation :
Record Supports Narrative Reason :                          YES
Date Applicant R esponded to N otification:                 20050827
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)

Recommendation of Commanding Officer (date):     UNDER OTHER THAN HONORABLE CONDITIONS ( 20050830 )
SJA review (date):                                   ( 20050905 )
Discharge directed by (date):     COMMANDING GENERAL, 2D FORCE SERVICE SUPPORT GROUP FORWARD ( 20050907 )
Narrative reason directed :                                   MISCONDUCT DUE TO COMMISSION OF A SERIOUS OFFENSE
Characterization directed:
Date Applicant Discharged:                         20051012

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            27
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               1
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             1
Other Documentation      (Describe Below)                 0

Total Number of Pages:                            29

Applicant’s Issues, as summarized by the Board:
1 . Record of service.
2 . Inequitable characterization based on one isolated incident.
3. Post service .

Decisional Issues:
The Board accepted Issues 1 -3 for consideration.

Issue 1 (Equity) and Issue 2 (Equity). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by a Summary Courts Martial for a violation of the Uniform Code of Military Justice (UCMJ) Article 92. Violation of UCMJ Article 92 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate. Relief denied.

Issue 3 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. The Applicant provided one letter of reference and two certificates of appreciation as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable and continuous employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Relief denied.

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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F ) , effective 01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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 92 , W illful dereliction of duties .

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 . 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board 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 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 “PTSD.” 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 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.

Board Membership: The names and votes of the members of the 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

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USMC | DRB | 2006_Marine | MD0601044

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