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Decision Text

USMC | DRB | 2008_Marine | MD0801775
Original file (MD0801775.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080804
Characterization of Service Received:
Narrative Reason for Discharge: RESIGNATION-UNACCEPTABLE CONDUCT
Authority for Discharge: MARCORSEPMAN 4104

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

Summary of Service

 Period of Service Under Review:
Inactive: USN (US Naval Academy) 19960702 - 20000523             Active:

Period of Service Under Review:
 Date of Appointment: 20000524     Years Contracted : Years Months         Date of Discharge: 20071018
Length of Service: Years Months 25 D ays       Education Level:        Age at Appointment :
Highest Rank: CAPTAIN     Officer’s Fitness reports: the Board for review.
 Awards and Decorations (per DD 214): RIFLE EX PISTOL EX JSCM CAR NMCAM(2) ICM ACM GWOTSM GWOTEM
SSDR NDSM JMUC NUC MUC.

Discharge Process

20061101: Applicant apprehended by US Customs for transporting illegal fur from Afghanistan.

20070109: Applicant submitted resignation request.

20070221: Commandant of the Marine Corps denied resignation request.

20070307: Applicant pleaded guilty to importing endangered species into the United States.
Sentence: $5 , 000; one year unsupervised probation; forfeiture of item.

20070717 : Commanding General, Marine Corps Combat Development Command, directed Applicant to show cause for
 retention at a Board of Inquiry .

20070812 : Applicant submitted a qualified resignation request.

20070813: Commanding Officer, Marine Cryptological Support Battalion, recommended App licant’s resignation request be
 approved.

20070814: Commander, Marine Corps Base Quantico, recommended Applicant’s resignation request be disapproved.

20070824: Commanding General, Marine Corps Combat Development Command, reco mmended Applicant’s resignation
 request be approved.
20070910 : Commandant of the Marine Corps , recommended to the Assistant Secretary of the Navy (Manpower and Reserve
Affairs) that with characterization of service as “General (Under
Honorable Conditions)”.

U nknown : Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of
unacceptable conduct , with characterization of service as “General (Under Honorable Conditions)”.

20071018 : Applicant discharged this date.

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) :



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

Applicant’s Issues

 1. Record of service.

Decision


 Date: 20 08 1204             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall RESIGNATION - UNACCEPTABLE CONDUCT .
Discussion

 : ( ) . The Applicant contends he is entitled to a discharge upgrade due to the sustained excellent performance of his duties, including during combat service. 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 civilian conviction for violation of the Endangered Species Act by attempting to import a jacket made from the fur of an endangered animal. The fur coat in question was discovered during a customs check at a U.S. airport when the Applicant returned from his deployment in Afghanistan. The NDRB reviewed the circumstances of this case and determined the most mitigating factor involved centered around the fact the merchant stand the Applicant purchased the jacket was approved by the military to sell merchandise on the base camp in Afghan i stan. It stands to reason, at least in the review by the NDRB, the Applicant presumed the items sold were not illegal or obtained under illegal circumstances. The NDRB accepts the Applicant’s contention this was an isolated incident of unintentional misconduct in that the Applicant was not aware of the laws regarding this act or that the fur of the coat he purchased were from an endangered species . The NDRB contacted the Applicant’s command to confirm the item was single in nature and there were no other issues surrounding this circumstance. The NDRB determined the Applicant’s record of service was sufficiently creditable to warrant an upgrade to the characterization of service to “Honorable.” However, the NDRB determined the Applicant’s discharge for “Unacceptable Conduct” was proper.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, paragraph 4104, RETIREMENT OR RESIGNATION. .

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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