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USMC | DRB | 2008_Marine | MD0800191
Original file (MD0800191.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20071113
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 ( Scholarship ROTC) 19820830 - 19841207 To Accept Commission     Active:

Period of Service Under Review:
 Date of Appointment : 19841208     Years Contracted : Years Months        Date of Discharge: 20000407
Length of Service : Y ea rs M on ths 29 D a ys         Education Level:         Age at Enlistment:
Highest Rank:    Officer’s Fitness reports: the Board for review.
Awards and Decorations ( per DD 214): NCM (w/1 Star), NAM (w/1 Star), SSDR (2 Stars), NUC (w/1 Star), MUC (w/1 Star), AFEM (w/1 Star) OSR

Periods of UA / CONF :

NJPs:
19961029 : Art icle 111 ( Drunken operation of a vehicle),
Article 133 (Conduct unbecoming an officer and gentleman).
 Awarded : Susp ended: .

NDRB Documentary Review Conducted (date): 20031003
NDRB Documentary Review Docket Number: MD03-00177
 NDRB Documentary Review Findings: No change warranted.


Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or 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 Representat ion :              From Member of Congress:
Other Documentation (Describe)
         - Applicant’s documentary review decision from the Naval Discharge Review Board .
         - SECNAVINST 5420.174D, Part V, Discharge Review Standards (5 pages) .
         - Three prior Naval Discharge Review Board decisions .
         - Board for Correction of Naval Records decision of 19920730 .



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

Applicant’s Issues

1 . Propriety .
2 . Post service accomplishments.

Decision


 Date: 2008 917              Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SEPERATION IN LIEU OF COURT MARTIAL .
Discussion

 : ( ) . The Applicant contends a reference to his 1990 non -judicial punishment as a First Lieutenant , and which was subsequently removed from his official record, had significant influence on the Secretary of the Navy’s decision to grant him an “ Under Other Than Honorable Conditions ” characterization. The reference was made in an endorsement letter signed by the Deputy Chief of Staff for Manpower and Reserve Affairs on 25 February 2000 and was contained in the Applicant’s Separation in Lieu of Court Martial request which was sent to the Assistant Secretary of the Navy (M&RA) for review and final approval.

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 feels this impropriety is sufficient ground for favorable consideration of his request to upgrade his discharge characterization . Wh ile the Board acknowledges the reference to the removed non - judic i al punishment was not proper, the Board determined this incident occurred so early in the Applicant’s career as to have had little or no impact upon the Assistant Secretary of the Navy’s decision to approve the “Under Other Than Honorable Conditions ” discharge . Junior officers are expected to make mistakes and senior leadership understands this in reviewing an officer’s overall career. Based on the incident occurring when the Applicant was a First Lieutenant , which is clearly pointed out in the endorsement letter, and limited leadership experience the Board share d the opinion the reference to the NJP did not carry as much influence on the Assistant Secretary of the Navy’s decision as the Applicant contends.

The Board feels the two subsequent incidents of misconduct, both which occurred while the Applicant was a field grade officer (a position wherein the highest standards of conduct are not only expected but demanded of our leadership), would have had a greater bearing on the Assistant Secretary of the Navy’s final decision. The first incident was the October 1996 non - judic i al punishment for driving und er the influence (after which the Applicant was required to show cause for retention on active duty) , and the second was the June - Sept ember 1999 incident concerning improper use of government computers (this misconduct was severe enough for the Applicant to be referred to trail by court martial ).

Per MCO P1900.16E , t he Marine Corps Separation and Retirement Manual in effect at the time of the Applicant’s discharge , Marines may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it is determined that the Marine is unqualified for further service . Characterization of service shall be “U nder O ther T han H onorable C onditions ” , but characterization as “U nder H onorable C onditions ( G eneral) ” may be warranted in some circumstances . In the Applicant’s request for resignation in lieu of court-martia l dated 06 Jan uary 2000, he clearly acknowledges that he may be separated “U nder O ther T han Honorable Conditions ” . He makes no plea to the Assistant Secretary of the Navy for special consideration for a “ General ” characterization. The Board determined while the mention of the 1990 NJP was done in error it was no t significant enough of an error, or incident, to have altered the outcome for the characterization and as a result an upgrade would be inappropriate.

: ( ) . The Applicant presents letters of reference, documentation of community service, work history, and proof of non-criminal activity to support his request for an upgrade based on post service conduct.


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. 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 servi c e conduct mitigates the reason for the characterization of discharge.

More favorable consideration may be given to a service member whose misconduct occurred at a younger age; at a time when one had limited life experiences , poor decision making skills , and limited impulse control . In these cases, the Board may consider post service activities by the applicant which display a developed maturity, perseverance and commitment . The Applicant’s misconduct occurred at the age of 37 when one expects a more solid foundation for sound decisions and ethical behavior to be in place . The Applicant was a commissioned field grade officer in the United States Marine Corps, entrusted with live and death decisions for subordinates. His willful misconduct violated this special trust and confidence given to us by the American people. While the Board a cknowledges the Applicant’s post service efforts, th ey were not found significant enough to mitigate the misconduct and warrant an upgrade . T he Board determined a upgrade would be inappropriate.

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

Pertinent Regulation/Law

 A The Marine Corps Separation and Retirement Manual , Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

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 .

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 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 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 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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