Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0902511A
Original file (MD0902511A.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:

          “ 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 .


Date: 20 130912             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 these 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 ’s second UA period, the A pplicant's commanding officer (CO) could have retained the Applicant; or retained and offered the A pplicant 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 CO 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 har sh 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 CO 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 TO THE 9 DECEMBER 2009 PERSONAL APPEARANCE HEARING
As a result of a complaint submitted by the Applicant to the Joint Service Review Activity (JSRA) on 25 June 2013 , the Secretary of the Navy Council of Review Boards (SECNAVCORB) determined c orrective action in the form of a new review by the Naval Discharge Review Board is warranted. Specifically, the SECNAVCORB found that the NDRB did not adequately consider post-service conduct at the Applicant’s 9 December 2009 Personal Appearance Hearing, and the NDRB president was incorrect in denying the Applicant reconsideration on the issue of post-service conduct in April 2012. On 12 September 2013, five qualified NDRB officers, none of whom were the NDRB president and none of whom sat on the Applicant’s May 2009 Documentary Review or his December 2009 Personal Appearance Hearing, met to consider whether the Applicant’s post-service conduct warranted an upgrade from General (Under Honorable Conditions) to Honorable. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The 12 September 2013 board considered the following post-service documentation: proceedings and testimony from the 9 December 2009 Personal Appearance Hearing and post-service documentation submitted at that hearing; New Jersey Firearms Purchaser ID card; Applicant’s statement of post-service conduct submitted to the NDRB on 26 March 2012; 12 letters of character reference; letters of appreciation from several charitable organizations; certificates of training; and Applicant’s statement of post-service conduct, which highlighted his 100% disability rating from the U.S. Department of Veterans Affairs, submitted to the JSRA on 25 June 2013. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. After a thorough review of the Applicant’s record of service and his post-service conduct, the NDRB determined t he General (Under Honorable Conditions) characterization was equitable and no f urther relief is warranted. Relief denied.





Summary: After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries, discharge process, and post-service conduct, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain IN LIEU OF TRIAL BY COURT MARTIAL. The Applicant is not eligible for further reviews from the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .



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

Similar Decisions

  • USMC | DRB | 2009_Marine | MD0902511

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

    His command accepted his SILT request and administratively processed him for separation.Issue 1: (Nondecisional) The Applicant desires to reenlist in the Marine Corps. 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...

  • USMC | DRB | 2009_Marine | MD0900327

    Original file (MD0900327.rtf) Auto-classification: Denied

    The NDRB reviewed the Applicant’s concerns as submitted with his DD-293 Form and the following is provided: A. Finally, the NDRB notes the medical records do not indicate the Applicant made any complaints while being examined by military medical officials he sustained abuse or maltreatmentduring recruit training, nor is there any indication the Applicant’s doctor suspected abuse or maltreatment during his examination.The NDRB determined the evidence available does not show the Applicant’s...

  • NAVY | DRB | 2011_Navy | ND1101817

    Original file (ND1101817.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. DEPARTMENT OF THE NAVYNAVAL...

  • NAVY | DRB | 2013_Navy | ND1300534

    Original file (ND1300534.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends he was discharged without proper administrative process.2. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The...

  • NAVY | DRB | 2015_Navy | ND1500181

    Original file (ND1500181.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain . ” Additional Reviews : After a document review has been...

  • USMC | DRB | 2011_Marine | MD1100369

    Original file (MD1100369.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2011_Navy | ND1101016

    Original file (ND1101016.rtf) Auto-classification: Denied

    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.The Applicant’s record of...

  • NAVY | DRB | 2015_Navy | ND1401681

    Original file (ND1401681.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Board determined that the documentation submitted by the Applicant does not warrant relief. ” 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.

  • USMC | DRB | 2011_Marine | MD1100291

    Original file (MD1100291.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2010_Navy | ND1002340

    Original file (ND1002340.rtf) Auto-classification: Denied

    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.The Applicant’s record of...