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USMC | DRB | 2009_Marine | MD0902575

Original file (MD0902575.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090916

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)       20000922 - 20010708     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010709     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040429      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 57
MOS: 3043
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:
Awards and Decorations ( per DD 214):      KDSM , ,

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20031203 :       For violations of the UCMJ and Georgia State Law, specifically the consumption of alcohol under the age of 21 years of age and subsequent charge of DUI. Your poor judgment, failure to obey rules and regulations are not keeping within the Corps values and good order and discipline

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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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 . 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

Applicant’s Issues

1 . Decisional issues : (1) The Applicant contends that he was unfairly treated and unfairly and improperly referred to trial by court - martial. The Applicant’s contention is that he was not guilty and accepted separation in lieu of trial by court - martial to escape what would be an unfair punishment. (2) The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable.

Decision

Date: 20 10 1118 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. The Applicant identified one decisional issue for the NDRB’s consideration; additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included one 6105 retention-counseling warning relating to a civilian conviction of driving under the influence of alcohol and no non-judicial or judicial punishments for violation of the Uniform Code of Military Justice (UCMJ). However, at time of discharge, the Applicant had been charged with violating Article 112(a) - 3 s pecifications.
Based on the nature of the purported misconduct , and the need to maintain the good order and discipline of the service, the Applicant’s command determined the alleged violations of the UCMJ were serious in nature and warranted punitiv e , vice administrative , action. In January 2004, the Applicant’s command preferred formal charges against the Applicant for violation of Article 112(a) ; th ose charges then were referred to trial by special court - martial. On 21 April 2004, the Applicant requested administrative separation for the good of the service to escape trial by court-martial. He exercised his right to consult with counsel and stated that he understood the elements of the offenses charged against him. The Applicant admitted he was guilty of the offenses charged . Furthermore, he stated that he understood that if his discharge was characterized as Under Other Than Honorable Conditions, it might deprive him of virtually all veteran benefits, and that he might expect to encounter substantial prejudice in civilian life in situations where the type of service rendered or the character of discharge received may have a bearing. The Applicant’s request for separation in lieu of trial by court-martial was approved on 01 Oct 2004 . H e was discharged effective 04 Oct 2004.

The Applicant provided additional documentation for the NDRB’s consideration, which included : verifiable employment records, marriage and birth certificates, training and educational certificates, evidence of a drug-free lifestyle, evidence of financial stability , and certification of non-involvement with civil authorities . Additionally, the Applicant provided copies of witness statements taken by the Naval Criminal Investigati ve Service and proof of his negative urinalysis results while at his assigned command. Submission of these items alone does not guarantee the upgrade of an unfavorable discharge ; each discharge is reviewed by the Board , on a case-by-case basis , to determine if post-service accomplishments help demonstrate that previous in-service misconduct was an aberration , and not indicative of the member’s overall character.

: (Decisional) ( ) PARTIAL . (1) The Applicant contends that he was unfairly treated and unfairly and improperly referred to trial by court - martial. The Applicant’s contention is that he was not guilty and accepted separation in lieu of trial by court - martial to escape what would be an unfair punishment and extended confinement . (2) The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable.

Based on the charges preferred by the command , the Applicant submitted his request for separation in lieu of trial by court-martial after consulting with a qualified defense counsel . The NDRB did not have the Applicant’s administrative separation package, but when members submit a request for separation in lieu of tri a l by court - martial , they are afforded the opportunity to consult with a qualified counsel and submit a written statement. The Applicant’s separation met all the pertinent requirements for propriety. However, a fter a thorough review of the records, supporting documents, facts, and the unique circumstances of this case, the NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service. The NDRB voted 4-1 that the characterization of the discharge be upgraded to a General (Under Honorable Conditions) but , by unanimous vote, the narrative reason for the discharge, In Lieu o f Trial by Court - Martial , shall remain as issued.

The NDRB considers 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. The Applicant provided several letters of reference and documentation regarding his employment, finances, education and training, health and medical records, substance abuse, criminal records, family and personal status, and community service. After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his personal statement , and the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service generally did not meet the standard of acceptable conduct and performance for naval personnel to warrant an Honorable characterization. However, the NDRB determined the Applicant’s service had been honest and faithful but that significant negative aspects of his conduct or performance outweighed positive aspects of his military record ; as such, the NDRB determined that p artial relief was warranted based on equitable grounds. By majority, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions) but voted unanimously not to change the narrative reason for separation.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process, and additional documentation provided by the Applicant, the NDRB found the discharge was proper, but not equitable. Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) while the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .
Should the Applicant feel at some later time his post - service conduct is worthy of personally presenting to the NDRB , there are organizations, such as the American Legion and Disabled American Veterans who are willing to provide guidance and assistance in preparing such a presentation.

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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USMC | DRB | 2009_Marine | MD0902575

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