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USMC | DRB | 2007_Marine | MD0700825

Original file (MD0700825.rtf) Auto-classification: Denied

USMC
MD07-00825

Current Discharge and Applicant’s Request

Application Received: 20070531 Characterization Received:

Narrative Reason: MISCONDUCT Authority: MARCORSEPMAN 1900.16f

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Desire medical benefits
                           2. Characterization not warranted by overall service record
                           3. Did not receive administrative discharge board

Decision

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

Date: 20 071220             Location: Washington D.C.         Representation :

Discussion

Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ). 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. A discharge under other than honorable conditions 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. The Applicant’s service was marred by a general court-martial for violations of the Uniform Code of Military Justice, Articles 80, 92 and 134. Each of the Applicant’s violations is considered a s erious offense for which a punitive discharge is authorized upon conviction at special or general court-martial. The Applicant, while assigned as the unit E qual Opportunity representative, fraternized with, attempted to commit adultery with, sexually harassed and indecently assaulted a junior, subordinate, female Marine. He committed further misconduct by warning her about a pending urinalysis and tampering with her urine specimen, all while serving as the unit S ubstance Abuse Control Officer . Every one of his offenses was a significant departure from the conduct expected of members of the naval service, especially for a staff noncommissioned officer. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract and falls far short of that required for an upgrade of his characterization of service.

Issue 3 ( ). The record clearly demonstrates that the Applicant freely and knowingly agreed to waive his administrative discharge board in order to lessen the amount of punishment to which he would otherwise be exposed at his general court-martial. There was no impropriety in the government holding the Applicant to the terms of his own agreement, and t here is no basis for the Applicant to now complain about receiving the outcome of his bargain.

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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that

Administrative Corrections to the Applicant’s DD 214

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

“ CONTINUOUS HONORABLE SERVICE FROM 19921004 - 20030106 ”
“ UNDER OTHER THAN HONORABLE CONDITIONS ”
“ MARCORSEPMAN 6210.6 ”
“ HKQ1 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Summary of Service

Prior Service:
Inactive: USMCR          19 8 81006 - 198 8 0820 (to IADT)              Active:          19890821 - 199 0 0 5 2 5 HON
         USMCR             199 0 0526 - 19 910215 (activated)                            19910216 - 19910415
                           199 10416 - 199 2 1005                                          199 2100 6 - 199 60613                                                                                                1996061 4 - 20030106
         Period of Service Under Review:
Date of Enlistment: 20030107               Years Contracted : ; Extension: Date of Discharge: 20060804
Length of Service : 03 Yrs 06 Mths 28 D ys                   Lost Time : Days UA: Days Confine d :
Education Level:                  Age at Enlistment:                AFQT: 74                   MOS: 1169/ 1142
Highest Rank:    Fitness reports :        Awards and Decorations ( per DD 214): Rifle , GCM ( 4 ), NMCCM (2) MOVSM, NMCAM (3), AAM, AFSM, GWOTSM, AFRM (2) , MM, SMCRM, NDSM (2), NASR, NUC, MUC (3) L o A (19 ^TH ), C ERTCOM (UNIT), CERTCOM (INDIVIDUAL), L o C, C o A (2), Pistol MM

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20051219:        Charges preferred against Applicant.

20060317:        Addditional charges preferred against Applicant.

20060515:        Applicant entered into pretrial agreement (PTA) with Convening Authority . Agreed to plead guilty to certain offenses and waive administrative discharge board in exchange for sentence limitations.

20060607 :        G CM -- Viol UCMJ Art. 80 – 20050305 attempted adultery w/female LCpl; Art. 92 (3 specs) – 20050222 – 20050720 fraternize w/female LCpl, 20050222 – 20050720 sexually harass female LCpl, and 20050222 – 20050530 derelict in performing urinalysis procedures; and Art. 134 (2 specs) – 20050520 i ndecent assault on female LCpl by picking her up and throwing her on bed in hotel room , and 20050410 impede discovery by removing urine sample of female LCpl.
         Awarded - RIR ( E-6 ); Confinement ( 60 days).

Discharge Process

Date Notified:   20060626
Basis for Discharge:      DUE TO:
         DUE TO:
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                  20060627
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board                       (per pretrial agreement)

Commanding General Recommendation (date):        ( 20060630 )
SJA review (date):       ( 20060706 )
Separation Authority (date):     COMMANDANT OF THE MARINE CORPS ( UNDATED )
Basis for discharge directed:   DUE TO:
Characterization directed:
Date Applicant Discharged:       20060804

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education:
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:    From Representative:             Other Documentation (Describe)

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16 F ), 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 s 80, Attempts; 92, Failure to obey order or regulation; 134 , Assault – indecent; and 134, Obstructing justice .

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, provi ded 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 grante d 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.

Employmen t / 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 | 2007_Marine | MD0700825

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