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USMC | DRB | 2008_Marine | MD0800978
Original file (MD0800978.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080320
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 (DEP) 19990115 - 19990614                Active:          19990615 - 20040109

Period of Service Under Review:
 Date of Enlistment: 20040110      Period of Enlistment : Years Months    Date of Discharge: 20070130
Length of Service: Years Months 21 D ays Education Level:       Age at Enlistment:       AFQT: 67
MOS: 3451        Highest Rank:    Fitness reports:
Awards and Decorations (per DD 214): Rifle Pistol (2) NUC (2) MUC (2)
LOA (2) LOC COC, MM (3)

 Periods of UA/CONF: SCM: SPCM: CC: NONE

NJP: 1
         - 20060822 : Article 91 (Willfully disobeyed a lawful order)
 Article 92 (Failure to obey an order or regulation)
 Awarded: LETTER OF REPRIMAND Suspended:

6105 Counseling:
20060822 :        For failure to obey an order and insubordinate conduct.

Previous NDRB Review

 NDRB Documentary Review Conducted (date): 20080214
NDRB Documentary Review Docket Number: MD08-00147
NDRB Documentary Review Findings: Proper as issued and no change is warranted.

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):
        
- Notice of secret clearance
 - E-mail from Capt O.


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

Applicant’s Issues

 1. Type of discharge does not reflect character of service.
2. Desires Narrative Reason for Separation be changed to Secretarial Authority.
3. Post service consideration.

Decision

 Date: 20081117            Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE.) .
Discussion
: ( ) . The Applicant claims his record of service reflects over 7 ½ years of honorable service and his character of discharge should be “Honorable”. 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’s record of service is marred by 1 retention warning and an NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Willfully disobeyed a lawful order) and Article 92 (Failure to obey an order or regulation). While a married man, the Applicant conducted an approximately nine month long relationship with a commissioned officer, for which he had been counseled by his commanding officer to terminate. He did not. Rather he went on vacation with her, continued to call her using both his government and personal cell phone, visited her in her apartment and moved his residence to the apartment complex where the officer resided. The Applicant stated the relationship was platonic. However, whether platonic or not, the appearance of familiarity between the two impacted negatively on the good order and discipline of his command. Additionally, he was ordered by his commanding officer to cease the relationship; an order which he repeatedly disobeyed. Considering his age, rank, and time in service, the Applicant knew better than to continue seeing this officer. The Applicant ultimately received NJP for his conduct, violations of Article 91 and Article 92, to which he plead guilty.
These violations are considered serious offenses which could have resulted in confinement and a punitive discharge if adjudicated and awarded as part of a sentence by a special or general court marital.

The Applicant has requested an upgrade to his discharge characterization to “Honorbale”. For the edification of the Applicant, w hen a Marine’s service has been honest, faithful and met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. Characterization of service as “General (Under Honorable Conditions)” is warranted when a member’s service has been honest and faithful, but a significant negative aspect of a member's conduct or performance of duty outweigh the positive aspects of the member's military record
 The Board acknowledges the Applicant’s performance was a significant deviation from what the USMC expects from a Staff Noncommissioned Officer. As such, the Board determined the awarded characterization of “General (Under Honorable Conditions)” was appropriate; an upgrade would be inappropriate.

: ( ) . The Applicant desires his Narrative Reason for Separation be changed from MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE) to SECRETARIAL AUTHORITY. As stated above, the Applicant plead guilty during NJP on 22 August 2006 for violations of the UCMJ, Article 91 and Article 92. The Applicant provides no evidence his misconduct did not occur; neither does he provide documentation offered as mitigation for his actions. The Applicant acknowledges during his Administrative Separation Board Hearing he committed the offense. As such, he rated what he received, a MISCONDUCT discharge for COMMISSION OF A SERIOUS OFFENSE. Considering the above, the Board determined an upgrade or change would be inappropriate.



: ( ) . The Applicant is asking his post service conduct be offered for mitigation in his request an upgrade. 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. 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 during Board reviews. The key word here is “Outstanding”. The Board is looking for actions that go beyond simply daily living. 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 limited documentation of post service accomplishments. He submitted only one recent letter of recommendation and a job description. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the limited post service documentation provided 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

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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, Articles 91 and 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, 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, 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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