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USMC | DRB | 2007_Marine | MD0700904

Original file (MD0700904.rtf) Auto-classification: Denied

ex-SSGT, USMC
MD07-00904

Current Discharge and Applicant’s Request

Application Received: 20070625 Characterization Received:

Narrative Reason: COMMISSION OF A SERIOUS OFFENSE Authority: MARCORSEPMAN 6210.6

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. One isolated incident in fifteen years of service.
                           2. Inequitable based on the offense.

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COMMISSION OF A SERIOUS OFFENSE.

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

Discussion

Issue (s) 1-2 (Equity) . The Board 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. 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 NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case. A particular circumstance which the board weighed as a mitigating factor was the Applicant’s total service. Although not an excuse for misconduct, the NDRB noted that there w as an i nequity in the Applicant’s discharge action in that the punishment was too severe for the misconduct. The Board is convinced that this was prejudicial to the Applicant, and therefore an i nequity in the characterization did occur.

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

Summary of Service
Prior Service:
Inactive: USMCR (DEP) 19880706 - 19890702                Active: 198 9 070 3 - 199501 19 HON
                                                                                 19950120 - 19971020 HON
                                                                                 19971021 – 20041123 HON
Period of Service Under Review:
Date of Enlistment: 20041124      Years Contracted : 4 ; Extension:          Date of Discharge: 20060207
Length of Service : 01 Yr 02 Mths 14 D ys         Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 26     AFQT: 75          MOS: 5811/0311    Highest Rank: GYSGT
Proficiency/Conduct marks (# of occasions):      4.6 / 4.6         Fitness reports :
Awards and Decorations ( per DD 214): GCM x 5, ICM, SSDR x 3, GWOTSM, NDSM, MCRR, AFSM, NMCOR, MUC x 4, NUC x 2, LOA x 3, MM x 2, COA, Rifle , Pistol EX

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

19970721 :        MARCORSEPMAN 6105 counseling for inappropriate comments made to two female Marines. Discharge warning issued.

20050609:         A pplicant signs pre - trial agreement agreeing to plead guilty at Summary Court-Martial and waiving right to an Administrative Discharge Board providing the Convening Authority withdraw s the charge from a Special Court-Martial.

2005061 4 :        SCM -- Viol UCMJ Art. 92, 2 specifications – 20050429 (consuming alcohol while in Iraq and derelict in the performance of duties as a military policeman by drinking alcohol ) .
         Awarded - FOP ( $1,000 ) for ( 1 month); RIR ( E-6 ); Restriction ( 60 days).

20051116 :        MARCORSEPMAN 6105 counseling for Summary Court-Martial charges.

Discharge Process

Date Notified:   20051116
Basis for Discharge:      DUE TO

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                  20051115
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)                         (20051103)
         Administrative Board                       PER PRE-TRIAL AGREEMENT

Commanding Officer Recommendation (date):        ( 20060109 )
SJA review (date):       ( 20060119 )
Separation Authority (date):     COMMANDER, 2D MARINE LOGISTICS GROUP ( 20060124 )
Basis for discharge directed:   DUE TO:
Characterization directed:
Date Applicant Discharged:       20060207

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)          Letter’s from 9 Marines within the chain of command
                                             Letter from Applicant’s parents
                                             Letter from Applicant’s wife
                                             Letter’s from family friends

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 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 92 .

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 | MD0700904

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