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USMC | DRB | 2008_Marine | MD0801485
Original file (MD0801485.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080702
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN, PARAGRAPH 4102 & SECNAVINST 1920.6B

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    19891030-19901001                 Active: 19901002-19990401 Continuous Honorable Service

Period of Service Under Review:
 Date of Appointment: 19990402    Years Contracted: 6 Years Months        Date of Discharge: 20031209
Length of Commissioned Service: 4 Years 8 Months 07 D ays Education Level: 16     Age at Commissioning: 27
 Highest Rank: 1 ST LT     Officer Fitness Reports:
Awards and Decorations (per DD 214): Rifle Pistol GCM SSD MUC JMU OS MM

 Periods of UA/CONF:

NJPs:

SCMs: NONE

BOI: 17 April 2003
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)
                 
                  - Petition for review of Discharge drafted by McCormack and Associates dtd 6 June 2008
Pertinent Regulation/Law

 A. Chapter 4, Paragraph 4102 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
1 September 2001 until Present), PROCESSING FOR SEPARATION.

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 125, 133, and 134.


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

Applicant’s Issues

 1. Propriety.
2. Characterization of discharge was too harsh.
2. Post service conduct.

Decision


 Date: 2008 1009    Location: Washington D.C. R epresentation : personal
                                                                                                   REPRESENTATIVE
 By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT.
Discussion

 : The Applicant claims the Board of Inquiry (BOI) had legal and evidentiary flaws: it was based on false statements by the primary witness; the government inappropriately charged him with an offense and a lesser included offense separately; there was no evidence to support the charge of disorderly conduct; and the Investigating Officer knew that the charges were weak and still inappropriately proceeded with the BOI. In reviewing discharges, the NDRB 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 submitted the full transcript of the BOI and issues for consideration which were previously submitted in his letter to the Secretary of the Navy dated 20 Jun 2003. His concerns were addressed very thoroughly by the Commanding General, MCB Camp Butler Okinawa, Japan in a report of the BOI sent to the Secretary of the Navy on 07 July 2003. Although the NDRB does not have the authority to reopen or retry cases of this nature, based upon its review of all available information, it did not find any impropriety in the conduct of the Applicant’s BOI. No further action can be taken regarding the legality of the BOI proceedings by the NDRB.

 : ( ) . The Applicant states his 16 years of honest and faithful service rate a “General (Under Honorable Conditions)” discharge vice the “Under Other Than Honorable Conditions” characterization of service he received. As stated above, the Applicant was the subject of a BOI; specifically for violations of the Uniform Code of Military Justice (UCMJ): Article 125 (Sodomy), Article 133 (Conduct unbecoming of an officer and a gentlemen), and Article 134 (General article, multiple specifications). These are considered serious violations and if adjudged as part of the sentence upon conviction by a special or general court-martial, the Applicant could have been awarded a punitive discharge and been subject to confinement. The members of the BOI found the preponderance of the evidence supported the allegations the Applicant engaged in misconduct and moral professional dereliction of duty.

Due to the special trust and confidence given to a commissioned officer, an officer is held to and expected to perform at a higher standard than an enlisted service member. The fact at the time of the offenses, the Applicant had already served almost 9 years on active duty and was more mature and experienced than his peers makes his actions all that much more objectionable. While he acknowledges his judgment errors for engaging in intimate contact with the wife of an enlisted airman and his wife simultaneously, among other acts, he still fails to understand how this relationship negatively impacted good order and discipline. Although an isolated incident, his willful misconduct was egregious enough to warrant a discharge characterization of “Under Other Than Honorable Conditions”. The NDRB determined an upgrade would be inappropriate.

Issue 3: (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. 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. 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; 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; documentation of a drug free lifestyle; and character witness
statements. 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 deter       mine if post service conduct mitigates the reason for the characterization of discharge.

The Applicants offers for post service consideration his service as a Staff Sergeant in the Missouri Army National Guard and as a Cole County Reserve Deputy Sheriff. He states he volunteers countless hours to support the Patrol Division; he shoots competitively; and attends numerous special events in his pursuit of community service. While the Board applauds his service in the Missouri Army National Guard, the Applicant did not provide sufficient evidence of post-service accomplishments. His character references are over three years old; not one of them was from a current supervisor and he provides no work history aside from his service with the Missouri National Guard. Although he claims to have spent “countless hours” doing volunteer work, he submits only one letter thanking him for support during a 2006 Presidential visit, two Certificates of Appreciation for “Hometown Guard” Flag Day support in 2006 and 2007and one email for funeral support in 2006. All efforts are related to his service with the National Guard or Cole County Sheriff’s department. He does not provide evidence of lengthy commitment to community or church efforts. The course certificates he encloses for consideration are all in support of his military MOS duties. Additionally, the shooting certificates the Applicant submits, while noteworthy on a personal level, do not show what he is giving back to the community. The documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. The Board determined an upgrade was not warranted.

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, 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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