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USMC | DRB | 2008_Marine | MD0800766
Original file (MD0800766.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080305
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: NONE                                       Active:

Period of Service Under Review:
 Date of Enlistment: 19890302      Period of Enlistment : Years Months     Date of Discharge: 19930308
Length of Service: Active: Years Months 28 D ays        Inactive: Years Months 10 D ays
Education Level:         Age at Enlistment:       AFQT: 61
MOS: 0311         Highest Rank:    Fitness Reports:
Proficiency/Conduct Marks (# of occasions):      ( ) / ( )
Awards and Decorations (per DD 214): Rifle ,

Periods of CONF: 19920614-19920624 (11 days)
19920724-19920922 (61 days)

 NJP: SCM: CC: 6105 Counseling:

SPCM:   
- 19920724 : Article 81 (Conspire to inflict bodily harm to a LCpl)
Article 108: (Willful damage of light bulbs by striking them with his hands)
Article 128 (Assault, unlawfully struck a LCpl)
Article 134 (Make a false statement while under lawful oath)
Sentence: BCD; CONF FOR 3 MONTHS, RIR.
CA action 19930216: Only so much of the sentence as provides for confinement for 3 months and
reduction to Private, is approved and ordered executed. The deferment of all unexecuted confinement is
hereby rescinded.
Types of Documents Submitted/reviewed

 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 Representation:              From Member of Congress:

Other Documentation (Describe):

Previous ndrb document review decision

NDRB Documentary Review Conducted (date):        20061116
NDRB Documentary Review Docket Number:   MD06-00400

Previous ndrb document review decision (cont)

NDRB Documentary Review Findings: Proper as issued and that no change is warranted.

Pending results of hearing.
Applicant Testified:
Applicant Available for Questions:
Witnesses:      
Observers:      

Pertinent Regulation/Law
A. Paragraph 6210, Misconduct of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective
27 June 1989 until 17 August 1995.

 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 .


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

Applicant’s Issues

 1. Unfair discharge, administrative discharge violated pre-trial agreement.
2. Post service conduct.
Decision

 Date: 20081210   Location: Washington D.C. R epresentation :

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

 : (Propriety) RELIEF NOT WARRANTED. The Applicant implies his discharge was improper because he was not fully informed of the possibility he could receive an administrative discharge after his special court martial. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant’s record of service is marred by a SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 81 (Conspire to inflict bodily harm to a LCpl); Article 108 (Willful damage of light bulbs by striking them with his hands); Article 128 (Assault, unlawfully struck a LCpl); and Article 134 (Make a false statement while under lawful oath). The Applicant was part of a group of Reserve Marine’s performing their active training in Twenty-nine Palms, CA who assaulted another Marine LCpl while he was sleeping which resulted in the victim receiving, among other injuries, a collapsed lung. These violations are considered serious offenses which could have warranted a punitive discharge if awarded by the SPCM. The Applicant did receive a “Bad Conduct Discharge (BCD)”. However, the BCD was not approved in accordance with the Applicant’s pre-trial agreement.

The Applicant has requested an upgrade to his discharge characterization to “Honorable”. He contends, based on his understanding of the pretrial agreement, he would be allowed to return to his reserve unit and complete his service obligation. The pretrial agreement specifically states in paragraph 9 the Applicant ‘may be processed for an administrative discharge because of the charges and specifications described below, even if part or all of my sentence, including a punitive discharge, is suspended or disapproved pursuant to this agreement.” The Applicant signed the pretrial agreement. Approximately 8 months after his SPCM, the Applicant’s command processed him for an administrative discharge, as allowed under paragraph 9 of his pre-trial agreement, and his discharge was approved by the CG, Marine Reserve Force. In support of the Applicant’s contention he provided a copy of a written letter dated 4 November 1992 from the Trial Counsel at his SPCM to the SJA, 4 th Marine Division where Counsel states “it has been my experience that a convening authority would not agree to suspend a discharge awarded from a court-martial and then process that Marine for the same conduct administratively.”

The Board reviewed the Applicant’s testimony, pre-trial agreement, letter from Trial Counsel and all documentation associated with the Applicant’s discharge and deliberated at length over the merit of the Applicant’s argument. The Board determined regardless of the Trial Counsel’s experience the Applicant’s command had the right to administratively discharge the Applicant as clearly stated in the pre-trial agreement. Additionally, the Board determined even if the Applicant’s reserve command did not exercise their right to administratively discharge him, upon completion of his service obligation an “Honorable” discharge characterization would have been inappropriate considering he had been awarded a SPCM during his current enlistment period. Finally, during the discharge review process the CG, Marine Reserve Force’s staff judge advocate reviewed the discharge package and did not find where any part of the Applicant’s pre-trial agreement was violated.

For the edification of the Applicant, when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. A SPCM represents a significant negative aspect in any members conduct and as such awarding an “Honorable” discharge characterization would be inappropriate.

After a thorough review of the Applicant’s official military record and carefully considering the testimony provided during the hearing, the Board determined the awarded discharge characterization was more than appropriate considering the misconduct the Applicant against another Marine; an upgrade would be inappropriate.

Issue 2: (Equity) RELIEF NOT WARRANTED. 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. 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 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. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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 company’s, or other financial institutions; 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 conduct mitigates the reason for the characterization of discharge.

The Applicant provided a personal statement, military documents, professional certificates and certifications, and as evidence of post-service accomplishments. It was noted the Applicant completed Law School since his discharge. However, while the Board was impressed with the quality of the Applicant’s post service conduct, it did not lessen the Applicant’s involvement for what amounted to an unprovoked violent physical attack against a fellow Marine who was unable to defend himself. In spite of being awarded a SPCM for this conduct, the Applicant still managed to be discharged from the Marine Corps with a “General (Under Honorable Conditions)”. The Board determined an 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


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 or is referred to a court-martial 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 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 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 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 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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