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USMC | DRB | 2009_Marine | MD0902511

Original file (MD0902511.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090917

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)       19900606 - 19911215     Active: NG (IADT) 199890123 - 19890429 HON

The Applicant’s NGB Form 22 indicates he served for one year, nine months, and ten days in a reserve component prior to the period of service covered by the Form 22 beginning on 19900606. The actual dates for this period of service could not be determined from the available records.

Period of Service Under Review:
Date of Current Enlistment: 19991019     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010109      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 41
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA :    20000303-20000423 (51 DAYS)
         20000902-20001112 (71 DAYS)

NJP:

- 20000509 :      Article (20000303-20000423 (51 DAYS))
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ IN LIEU OF TRIAL BY COURT MARTIAL ”
         “ 20000303-20000423 (51 DAYS); 20000902-20001112 (71 DAYS) ”

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

NDRB Documentary Review Conducted (date):        20090507
NDRB Documentary Review Docket Number:   MD09-00327
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 P1900.16E), effective 18 August 1995 until 31 August 2001.

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 . 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 .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT
(CORRECTED)
Applicant’s Issues

The NDRB consolidated the Applicant’s many issues into the following succinct list:

1.       Nondecisional issue . Applicant desires to reenlist.
2.       Decisional issue . Applicant claims his alleged maltreatment, assault and hazing at recruit training and the Marine Corps’ failure to investigate his allegations were mitigating circumstances for his misconduct.
3.       Decisional issue. Applicant c ites his commanding officer's claim that "the inability to retrain him into another MOS prevented him from being retained" as evidence that his commanding officer would have retained him if possible.
4.       Decisional issue. Applicant claims his characterization of discharge is unduly harsh based on his overall military record and misconduct.
5.       Decisional issue. Applicant seeks post-service conduct consideration.

Decision

Date: 20 09 1209          Location: Washington D.C .         R epresentation :

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

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Applicant's record of service included one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, 51 days), and one request for separation in lieu of trial by court-martial (SILT) based upon a second violation of Article 86 (UA, 71 days). The Applicant exercised his right to consult with qualified counsel and requested a SILT to avoid court-martial. His command accepted his SILT request and administratively processed him for separation.

Issue 1: (Nondecisional) The Applicant desires to reenlist in the Marine Corps. 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 reenlistment 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.

Issue 2: (Decisional) Equity RELIEF NOT WARRANTED. The Applicant states that he was maltreated, assaulted and hazed in recruit training at MCRD Parris Island, and, after reporting the treatment to his congressman, he continued to be harassed while at Marine Combat Training, Camp Lejeune, NC; at Military Police School, Ft Leonard Wood, MO; and at Security Battalion, Quantico, VA. The Applicant further claims that he went UA to report these abuses to his congressman. The evidence of record did in fact note his repeated communications with his congressman's office on this matter, and that the Marines Corps did not investigate his allegations, despite several letters from the congressman requesting that they to do so. However, the NDRB determined that there was not sufficient documentation to either support or refute the Applicant's claims confirming that the alleged maltreatment, assault or harassment at the hands of his drill instructors. In the absence of this documentation, the NDRB could not make a reasoned assessment of the merits of his case, nor accept theses allegations as mitigation for his misconduct.

Issue 3: (Decisional). Equity. RELIEF WARRANTED (CORRECTED) . The Applicant was trained to become a Military Policeman. As a result of the Applicant second UA period, the applicant's commanding officer, (C.O.), could have retained the Applicant; or retained and offered the applicant the opportunity to retrain in another MOS, but referred him instead to a special court-martial for which he voluntarily requested separation in lieu of trial, which was accepted by his command. The C.O. has reported through signed memoranda and related correspondence that he made errors in processing the Applicant for a SPCM, and in his opinion that the Applicant should have been given the opportunity to be retained/retrained in another MOS. Specifically, he noted that he would have retained him, but for his MOS. The NDRB opined that, due to the fact that the Applicant was not given the opportunity for continued service, coupled with his former commanding officer's statements on the matter, relief was warranted.

Issue 4: (Decisional) Equity. RELIEF WARRANTED. The Applicant states his punishment was unduly hard based on his record of service and the mitigating circumstances surrounding his misconduct. The Applicant had two periods of UA. The first period for 51 days, which occurred in conjunction with post-surgery convalescent leave, was handled at company level NJP. The second period was for 71 days, after which the Applicant voluntarily returned to military authorities. This specific violation may be punishable by a dishonorable discharge or a bad conduct discharge, total forfeitures of pay and allowance and up to 1 year of imprisonment if adjudicated by a court-martial. Based on the Applicant's overall record of service, the documented contact between the Applicant and his congressmen during his UA periods regarding allegations of maltreatment, the lack of any investigation despite a congressmen's repeated requests, and the supportive correspondence provided by his former C.O. recommending discharge upgrade, the NDRB determined that an Under Other Than Honorable Conditions characterization of service was too harsh. Relief granted.

Issue 5: (Decisional) Equity. RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade in characterization to General Under Honorable Conditions or Honorable. As the NDRB had determined relief is warranted based on the Applicant's previous issues, no further consideration on this issue is required.

Summary: After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries, and discharge process, the Board found the discharge was proper but not equitable. Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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

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