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USMC | DRB | 2008_Marine | MD0801166
Original file (MD0801166.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080505
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)    19930827 - 19940815              Active:           1 9940816 - 19980115
                                                                                          19980116 - 20000928
Period of Service Under Review:
 Date of Enlistment: 20000929      Period of Enlistment : Years Months     Date of Discharge: 20010130
Length of Service: Years Months 02 D ays       
Education Level: Age at Enlistment: AFQT: 40 MOS: 0811
Highest Rank:    Fitness Reports:
Awards and Decorations (per DD 214): Rifle Pistol (2) (3) NATO MM
LoA (3)
Periods of UA/CONF: NJP: SPCM: CC: 6105 Counseling:

SCM:    
- 20001222 : Article 121 (Stole 20,000 Yen).
Sentence: RESTR.
CA Action: 20001222 Sentence approved and ordered executed.

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19940816 UNTIL 2000928 ”

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

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)

NDRB Documentary Review Conducted (date):        20021008
NDRB Documentary Review Docket Number:   MD02-00917
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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

Applicant’s Issues

 1. Discharge was too harsh.
2. Post-service conduct.

Decision

 Date: 2009 0415             Location: Washington D.C.        R epresentation :

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

 : ( ) RELIEF NOT WARRANTED. The Applicant implies his discharge was too harsh. 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 was marred by one SCM for a violation of the Uniform Code of Military Justice (UCMJ): Article 121 (Larceny, stole 20,000 Yen) . An arrest warrant was subsequently granted by a Japanese Judge, Naha District Court for the arrest of the Applicant. The Applicant did not resist during his arrest when the Japanese Police Officers stopped a taxi the Applicant was riding in after the theft of the 20,000 Yen occurred. The Applicant was taken to the Okinawa Police Station (OPS). While at OPS the Applicant was interrogated and the Victim was provided a line-up of possible suspects. At first, the Applicant denied culpability; however, eventually he admitted to stealing the money from the Victim’s wallet at a restaurant. The Applicant further stated he had committed the crime alone.

A violation of UCMJ Article 121 is considered a serious violation which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not pursue a punitive discharge but instead opted for an administrative discharge. The Applicant failed to show how his discharge was too harsh as he claimed; he could have received a punitive discharge and confinement in a military brig for this misconduct. He received neither. The Board determined the awarded discharge characterization was appropriate and an upgrade based on this issue was not appropriate.

: ( ) . The Applicant contends his post-service should be considered for 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 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 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. 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 companies, 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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Applicant provided numerous items for post service documentation which included: An Associates Degree in Criminal Justice Technology with transcripts; Bachelor of Science in Criminal Justice Administration with transcripts; Division of Motor Vehicles RDLIST/Driving record (Clear); Certified Criminal Record Search; certificate of completion in Supervisory Skill Path from his employer; and reference letters from a college professor and friends. The NDRB determined the Applicant’s post-service conduct, while not sufficient to warrant upgrade of “Honorable,” is sufficient to warrant an upgrade to “General (Under Honorable Conditions).” The Board voted 4-1 that the character of the discharge shall change to “General (Under Honorable Conditions” based on his substantial post-service documentation and conduct. The Narrative Reason, “Misconduct” was the appropriate narrative reasoning given to the applicant and will remain the same.

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 the discharge was proper and equitable at the time it was issued. However, based on considerable post service conduct, the NDRB found this behavior was not indicative of the Applicant’s overall character and granted partial relief to a “General (Under Honorable Conditions)” discharge.

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
31 January 1997 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 .

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 121 (Larceny).




































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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