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USMC | DRB | 2009_Marine | MD0900011

Original file (MD0900011.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20081001

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)     19950109 - 19950110     Active:          19950111-19981026 HON
                                                                        USMC      19981027-20020314 HON

Period of Service Under Review:
Date of Enlistment: 20020315     Age at Enlistment:
Period of E nlistment : Years 24 Months
Date of Discharge: 20070614      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 40
MOS: 3533
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) ( 3 ) ( 5 ) KDSM CoA

Periods of CONF : 20070328-20070611 ( 76 days)

NJP:
- 20060823 :       Article 134 (Indecent act with another , did, on different occasions wrongfully commit indecent acts with a woman, by participating in acts that could bring discredit upon the Armed Forces)
         Awarded : Susp ended: Suspension vacated 20070222.

- 20070307 :       Article 86 (UA ), 2 specifications:
                  - 20070205 to 20070206 (1 day)
                  - 20070206 to1100 20070207 (1 day)
         Article 92 (Disobeying a direct order to report to his designated place of duty when order)
         Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 20060907: For being eligible but not recommended for promotion to staff-sergeant due to NJP.

- 20070308:       For nonjudicial punishment held on 20070307 for violation of Article 92, by disobeying a direct order to report to his designated place of duty when ordered and violation of Article 86, unauthorized absence from 0731, 20070205 to 0900, 20070206 and 0931, 20070206 to 1100, 20070207. You are advised that due to the nonjudicial punishment you will be ineligible for promotion for a period of 6 months from the date of NJP.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ KFS1 ”
         Block 29, : “ (76) 20070328-20070611 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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 Representat ion : From Congress member :

Other Documentation :

Pertinent Regulation/Law

A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

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 86 (UA ) ; Article 92 (Disobeying a direct order ) and Article 134 (Indecent act with another, did, on different occasions wrongfully commit indecent acts with a woman, by participating in acts that could bring discredit upon the Armed Forces) .

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

Applicant’s Issues

1. Employment opportunities.
2. Was pending a medical discharge.
3. Unfairly treated.

Decision

Date: 20 0 9 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall OTHER THAN HONORABLE .
By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL .

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 paragraphs concerning , and regarding .

The Applicant contends his discharge should be upgraded because he was pending a medical discharge and tha t his Company Commander lied to him. 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. 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 two retention warning s and two NJP ’s for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA ) , 2 specifications, from 0731, 20070205 to 0900, 20070206 (1 day), and 0931, 20070206 to1100 20070207 (1 day) ; Article 92 (Disobeying a direct order to report to his designated place of duty when order); Article 134 (Indecent act with another, did, on different occasions wrongfully commit indecent acts with a woman, by participating in acts that could bring discredit upon the Armed Forces) . These violations are considered serious in nature and could have resulted in confinement and a punitive discharge if adjudicated and awarded as part of a sentence by a special o r general court-mart ial . The Applicant requested an administrative discharge in lieu of trail by court-martial and was subsequently processed out of military service with an “Other Than Honor able ” discharge characterization.

: ( ) . The Applicant implies that he was treated unfairly by his unit and by his Commanding Officer . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the command unfairly singled him out for ridicule or discipline. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Board determined the Appli c ant’s claim is without merit and the awarded discharge characterization was appropriate; 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

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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USMC | DRB | 2009_Marine | MD0900011

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