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USMC | DRB | 2008_Marine | MD0801202
Original file (MD0801202.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080506
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)     19920626 - 19930614              Active:
Period of Service Under Review:
 Date of Enlistment: 19930615               Period of E nlistment : Years Months             Date of Discharge: 19961126
Length of Service : Yrs Mths 18 D ys      Education Level:         Age at Enlistment:       AFQT: 54
MOS: 0351        Highest Rank:                     Fitness R eports:
Proficiency/Conduct marks (# of occasions):      3.9/3.8 (8)
Awards and Decorations ( per DD 214): Rifle : SS, Pistol : , NDSM, SSDR x2, LoA, AFSM, NATO Medal.

Periods of UA / CONF : CONF: 24 days, 19960628-19960722 .

SPCMs:   1
         19960628: Art icle 81 ( C onspiracy to maltreat) ,
         Art icle 93 ( M altreatment) ,
Art icle 128 ( A ssault) .
Sentence - C onfinement (30 days), FOP ($583 for 1 month) , RIR (E1) .
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 Representat ion :              From Member of Congress:

Other Documentation (Describe) :

Commander, LCC, MA ANG (BG T. J. S) memo dated 01 MAY 2008.
Commanding Officer, MAAR-26th BCT (COL B. A. F. Jr.) memo dated 16 MAY 2006.
Deputy Commandant, USA Warrant Officer Career Center (CW5 C. W. McA.) memo dated 29 JUN 2007.
Command CWO JFHQ, MA ANG (CW5 P. C. G.) memo dated 02 APR 2008.
Command CWO JFHQ, MA ANG (CW5 P. C. G.) memo dated 05 JUL 2006.
 Branch Chief (131A), MA ANG (CW4 M. H. S.) memo dated 04 MAR 2008.
Deputy C/S (Personnel), MA ANG (COL C. L. P.) memo dated 25 MAY 2007.
Commanding Officer, MAAR-26BCT-HHC, MA ANG (CPT M. J. C.) memo dated 13 MAR 2008.
Three NCO Evaluation Reports.
Warrant Officer Candidate School graduation diploma dated 15 JUN 2007.
 Appointment as a Reserve Warrant Officer in the USA dated 15 JUN 2007.
Pre-Warrant Officers Course completion certificate dated 13 AUG 2006.
Graduation diploma from the Primary Leadership Development Course dated 12 FEB 2005.
Other Documentation (Describe) (continued):
Graduation diploma from the TATS BN COC Common Leader Training Phase 1 dated 26 MAR 2006.
Army Physical Fitness Test Scorecard for 14 OCT 2007 test and Commander's recognition.
AFATDS Operator Course training certificate.
Certificate of Thanks from BSA Troop 126 dated 09 JUN 2007.
Undated thank you letter for NG assistance on 03 SeP 2005.
Jungle Warfare Course completion certificate dated 26 OCT 1995.
NATO Medal certificate for the period OCT 1994 - APR 1995.
Chronological record of service and combat history and awards pages of Applicant's Marine Corps' Service Record Book.
"285 Club" Physical Fitness Test Certificate of Excellence dated 06 SEP 1993


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

Applicant’s Issues

 1. RE Code change.
2. Punishment too harsh.
3. Post service conduct.

Decision

 Date: 20 08 0 711             Location: Washington D.C .         R epresentation :

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

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning s regarding . Based on the Applicant's superior post service conduct, the NDRB enthusiastically recommends the Board of Corrections for Naval Records upgrades the Applicant's RE code.

: ( ) . The Applicant contends his discharge was too harsh in light of his offenses. The Applicant should note an administrative discharge is not punishment. A General (under honorable conditions) discharge is warranted when certain negative aspects of a service member's conduct detract from the overall value of that member's service. The Applicant's record was marred by a Special Court Martial for violations of the UCMJ Articles 81 ( C onspiracy to maltreat), 93 ( M altreatment), and 128 ( A ssault). While the Applicant did not receive a punitive discharge, it was within the authority of the Special Court Martial to award such a discharge. The Board determined an upgrade to the Applicant's discharge would be inappropriate.

: ( ) . 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. The Applicant provided an extensive package documenting his superior performance in the Army National Guard, evidence of community service, and positive excerpts from his Marine Corps Service Record Book as evidence of his character . While the Applicant's post- Marine Corps Service is impressive, it is insufficient to mitigate his misconduct to such an extent an Honorable discharge would be warranted. Again, the Board determined a discharge 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 18 Aug 95 until 30 Jan 97).

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, 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 or is referred to a court-martial fo r 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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