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USMC | DRB | 2008_Marine | MD0801554
Original file (MD0801554.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080715
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) 20020822 - 20020915                Active:

Period of Service Under Review:
Date of Enlistment: 20020916     Period of E nlistment : Years Months      Date of Discharge: 20061201
Length of Service : Y ea rs M on ths 16 D a ys Education Level: Age at Enlistment: AFQT: 52
MOS: 6253 Highest Rank:        Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
 Awards and Decorations ( per DD 214): Rifle Pistol (2) ICM ACM CoC LoA (4)

Periods of UA / CONF :

NJP :
20060821 : Art icle 92 (Failure to obey an order or regulation )
Awarded : Susp ended: Suspension vacated 20060831.

S CM :
20060921 : A rt icle 92 (Failure to obey lawful order)
 Article 134 (Wrongfully have sexual intercourse with a Corporal, a woman not his wife
 Sentence : Susp ended: RESTR EPD

6105 Counseling :
20000820 : For displaying a pattern of failing to follow both written and verbal lawful orders. You have been accused of
failing to obey an order or regulation. On or about 20080818 you did violate an Al Asad Base Order, 5000.1B
by exercising without a reflective belt in the hours of darkness and by wearing headphones during exercise.
These alleged acts place you in direct violation of Article 92 of the UCMJ Manual. Your disregard for
A uthority , lack of concern for others, yourself and failure to follow orders or regulations is prejudice to the good
order and discipline of our Corps. This is not acceptable behavior and conduct for a United States Marine.

20060922 : For being accused of failure to obey an order or regulation and committing adultery. On or about 20060921,
you were convicted by a Summary Court Martial for failure to obey an order and committing adultery. This a
a lleged act placed you in direct violation of Article 92 and 134 of the UCMJ Manual. Your disregard for
authority, lack of concern for others and failure to follow orders or regulations is prejudice to the good order and
discipline of our Corps. This is not acceptable behavior and conduct for a United States Marine.

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:       
        
Related to Post-Service Period (cont):

         Family/Personal Status:                   Community Service:                References:              
         Additional Statements From Applicant:    From Representat ion :             From Member of Congress:

Other Documentation (Describe) :

         - Basic Firefighter certificate
          - Hazmat 1 st Responder Awareness certificate
          - Hazmat 1 st Responder Operation certificate
          - Safety Award 2007
          - Healthcare Provider certificate card (CPR Cert)
         - List of references
Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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, Article 92 (Failure to obey orders or regulations), and Article 134 (Adultery).



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

Applicant’s Issues
1. Record of Service – Isolated incidents

Decision


 Date: 20 08 1016         Location: Washington D.C .         R epresentation :

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

 : ( ) . The Applicant contends his discharge should be upgraded based on his record of service which was good apart from a single period of misconduct. For the Applicant’s edification, d espite a Marine’s prior record of se rvice certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. 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 a NJP for violation of the Uniform Code of Military Justice (UCMJ): Articles 92 (Failure to obey orders or regulations) and a Summary Court-Martial for Articles 92 (Failure to obey orders or regulations) and Article 134 (Adultery). These violations are considered serious offenses, punishable by 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 opted instead for an administrative discharge.

The Applicant has requested an upgrade in his discharge characterization to “Honorable”. In order to rate an “Honorable” discharge, a member’s quality of a service has met the standards of accepted conduct and performance of duty for military personnel . An “U nder O ther T han H onorable ” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. 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.

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 NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service. With a vote of 5-0, the Board found the discharge was proper but not equitable in that the violations were limited enough to rate a “General (Under Honorable Conditions)” rather than the awarded “Under Other Than Honorable Conditions”. T he Board determined an upgrade to “General (Under Honorable Conditions)” was appropriate. The Board concluded the Applicant’s misconduct was not the accepted standard of conduct for a Marine and an upgrade to “Honorable” would be inappropriate.


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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