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USMC | DRB | 2009_Marine | MD0900005
Original file (MD0900005.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081001
Characterization of Service Received:
Narrative Reason for Discharge: SUFFICIENT SERVICE FOR RETIREMENT
Authority for Discharge: MARCORSEPMAN 2003

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    19841026 - 19850826     Active:           19850827 - 19881212
                                    19881213 - 19921106
                                    19960112 - 19970130

Period of Service Under Review:
 Date of Commission: 19970131      Age at Commission:
Period of Commission : Indefinite
Date of Discharge: 20050731       H ighest Grade: CHIEF WARRANT OFFICER (W3)
Length of Service: Years Months 01 D ays
Education Level:         AFQT: 43
MOS: 2100
Fitness Reports:

Awards and Decorations (per DD 214):     Rifle (2) Pistol NMCCM (2) (2) (2) MCRR (3) (2) MM
Periods of UA/CONF:

NJP:
- 20020124 : Article 133 (Conduct unbecoming an officer)
Awarded: Letter of Reprimand Suspended:

SCM: SPCM: CC: Retention Warning Counseling:

Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:         Service/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 Congress member:

Other Documentation:





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

Applicant’s Issues

 1. The Board of Inquiry (BOI) which recommended characterization of service was invalid.

Decision


 Date: 2009 0205             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SUFFICIENT SERVICE FOR RETIREMENT .
Discussion

 : ( ) . The Applicant contends he is entitled to a discharge upgrade because the BOI which recommended the Applicant receive a “General (Under Honorable Conditions)” characterization of service was found to be improperly composed. 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 NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 133 (Conduct unbecoming an officer). This is considered a serious offense which could have resulted in a dismissal if adjudicated and awarded as part of a sentence by a general court-martial. The Applicant was subsequently referred to a BOI for failure to demonstrate acceptable qualities of leadership required on an officer of his grade; failure to properly discharge duties expected of an officer of his grade; commission of a military or civilian offense that could be punished by confinement of six months or more and any other misconduct that would require specific intent for conviction; and intentional misrepresentation or omission of material fact in official written documents or official oral statements. The BOI determined the preponderance of the evidence showed the Applicant had demonstrated substandard performance of duty as evidenced by failure to demonstrate acceptable qualities of leadership required of an officer of his grade; and engaging in personal or professional conduct that is unbecoming an officer by violating Article 92 (Disobeying a lawful order) and Article 134 (Obstructing justice). The BOI recommended the Applicant be separated with a “General (Under Honorable Conditions)” characterization of service. The BOIs recommendations were endorsed by the Commanding General of Training Command, the Commandant of the Marine Corps, and were approved by the Assistant Secretary of the Navy for Manpower and Reserve Affairs. The Applicant was subsequently initially separated from the Marine Corps short of his 18 year mark.

The Applicant petitioned the Board for Correction of Naval Records (BCNR) for correction of the record on the grounds the BOI was improperly composed and therefore its findings improper. The BCNR concurred with the Applicant in that his BOI was improperly composed however; this ruling from BCNR took approximately 2 years to complete. As a result, the BCNR directed the Applicant’s service record to be changed to reflect the Applicant served on active duty until his first date of eligibility for retirement, thereby allowing the Applicant to receive his military retirement pay and benefits. The NDRB notes the record accurately reflects the changes directed by BCNR. Notwithstanding the BOI’s composition, the NDRB noted the BCNR found the allegations of misconduct against the Applicant were properly substantiated by the BOI; this normally would have resulted in a member’s separation. Moreover, the BCNR determined the Applicant did not satisfactorily serve in the grade of CWO3 due to his repetitive misbehavior with the wife of an enlisted Marine and that the Applicant’s discreditable behavior threatened the command’s good order and adversely affected the morale of his unit. Therefore, the BCNR directed the Applicant be retired in the lower grade of CWO2.

The NDRB also determined an upgrade to an “Honorable” discharge was not warranted. The Applicant argued the “General (Under Honorable Condition)” discharge recommended by the BOI, and later approved by the Assistant Secretary of the Navy (M&RA), was invalid given that BCNR had set aside the BOI. However, in reviewing the Applicant’s case, the BCNR determined the Applicant’s misconduct was substantiated, which resulted in their decision, as the Secretary of the Navy’s delegated authority, to retire the Applicant in the grade in which he last served honorably, and to determine the appropriate

characterization of discharge. The BCNR decision also ratified the ASN (M&RA)’s approval of a “General (Under Honorable Conditions)” discharge which was within their authority. The NDRB concurred with BCNR’s action and believes that the awarding of a “General (Under Honorable Conditions)” discharge to the member was appropriate and in accordance with regulations. The NDRB determined an 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 . The Marine Corps Separation and Retirement Manual, (MCO P1600.19F), effective 1 September 2001 until Present, Paragraph 2003, VOLUNTARY RETIREMENT.
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 133 (Conduct unbecoming an officer).

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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