ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20090316
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)      20010915 - 20011021   Active:      20011022 -
20051013  HON

Period of Service Under Review:
Date of Enlistment:  20051014     Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  20071215 Highest Rank:
Length of Service:    Year(s)    Month(s)  01  Day(s)
Education Level:       AFQT:  51
MOS:  0151
Fitness Reports:

Awards and Decorations (per DD 214):    Rifle   (2)     N (2) PUC-N LOA (4)

Periods of UA/CONF:

NJP:

SCM:

    - 20070822:  Article 132 (Fraud against the United States), 2
             specifications
      Sentence:
SPCM:

CC:


Retention Warning Counseling:


    - 20060612:  For misuse of government property:  playing video games
             while on duty on a government computer.


    - 20070917:   For violation of Article 132, Fraud against the United
States Government

                    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:

                          Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and
Retirement Manual, (MCO P1900.16E), 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 Art 132.



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

                             Applicant’s Issues

1.  Nondecisional issue. Applicant desires to reenlist.
2.  Nondecisional issue.  Applicant would like his RE code upgraded.
3.  Nondecisional issue.  Applicant would like to use his Montgomery GI
Bill and Texas state Hazelwood Act education benefits.
4.  Decisional issue.  Applicant feels he was not given proper legal
counsel and was given conflicting information about his characterization of
service.
5.  Decisional issue.  Applicant feels his unit shunned him and did not
treat him fairly.
6.  Decisional issue.  Applicant feels the punishment was too harsh for the
crime.

                                  Decision


Date:  20090917              Location: Washington D.C.
Representation: NONE

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COMMISSION OF A SERIOUS OFFENSE.

                                 Discussion


The NDRB, under its responsibility to examine the propriety and equity of
an Applicant’s discharge, is authorized to change the character of service
and the reason for discharge if such change is warranted.  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 reflects two 6105 counseling warnings and one
Special Court Martial for violations of the UCMJ: Article 132, two
specifications of fraud against the United States Government.  Based on the
offenses committed by the Applicant, his command administratively processed
him for separation.  When notified for administrative separation
processing, the Applicant consulted with qualified counsel, submitted a
written statement, but waived his right to an administrative separation
board.

:  (Nondecisionial) The Applicant would like to reenlist in the Reserves.
The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement
into the Navy, Marine Corps, or any other branch of the Armed Forces, and
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 NDRB 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  Regarding his desire to use his Montgomery GI Bill
education benefits, the U.S. Department of Veterans Affairs 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. The
Applicant is directed to the addendum, regarding , and  for more
information regarding .

Issue 4:  (Decisional) ()  .  The Applicant contends he was “bullied” into
making a statement incriminating himself.  According to the statement the
Applicant submitted with his petition, he “spoke closely” with a military
lawyer, who informed him that if he signed a pre-trial agreement admitting
to guilt, his command would recommend he receive no lower than an Under
Other Than Honorable Conditions characterization discharge, but no higher
than a General Under Honorable Conditions.  His attorney also stated that,
despite the command’s recommendation, the convening authority (CA) would
have the final say regarding the characterization of the Applicant’s
discharge.  In his case, the CA disregarded the command’s recommendation
and approved an Under Other Than Honorable Conditions discharge.  The
Applicant’s service record contains separation documents which verify he
did consult with an attorney.  The Applicant provides no evidence apart
from his personal statement that he was “bullied” into making a self-
incriminating statement.  He voluntarily signed a pre-trial agreement in
which he plead guilty to the offenses to avoid a more punitive discharge.
It is the opinion of the Board that relief on the Issue be denied.

Issue 5:  (Decisional ) ()  .  The Applicant claims that after he was
charged with violation of UCMJ Art 132, his unit “disowned” him and shunned
him.  Per the Applicant’s statement, once charged he was removed from his
administrative duties in his parent unit and moved to another unit on Base.
 This is an appropriate option for a supervisor (the Applicant was the
NCOIC of his unit’s Personnel PCS/TAD Orders section) who is facing
disciplinary proceedings.  The Applicant provides no evidence that he was
mistreated or subject to discrimination.  It is the opinion of the Board
that relief on this issue be denied.

Issue 6:  (Decisional) () .  The Applicant contends that other service
members in his unit charged with similar offenses were given more lenient
punishment.  Although members may be charged with violations of the same
UCMJ Article, each case stands on its own merits.  Matters pertaining to
extenuation and mitigation vary per individual. The punishment the
Applicant was awarded for his misconduct was in accordance with the
guidelines established in the Uniform Code of Military Justice.  It is the
opinion of the Board that relief on this issue be denied.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service, service record entries, discharge process
and evidence submitted by the Applicant, the Board found   Therefore, the
awarded characterization of service shall remain Under Other Than Honorable
Conditions, and the narrative reason for separation shall remain Commission
of a Serious Offense.

[The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of his/her discharge, December 15,
2007.  The Applicant is directed to the Addendum, specifically the
paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service
Conduct.]


                  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 NDRB has no authority to upgrade
a discharge for the sole purpose of enhancing employment or educational
opportunities.  Regulations limit the NDRB’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 NDRB 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 NDRB 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