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USMC | DRB | 2009_Marine | MD0902582
Original file (MD0902582.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)       19920125 - 19920225     Active:            19920226 - 19960116
                                             19960117 - 19981018

Period of Service Under Review:
 Date of Current Enlistment: 19981019      Age at Current Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20000908       H ighest Rank Held :
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:         AFQT: 37
MOS: 0121
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      (2) CoC (2) CoA LoA KCM MM (2)

Periods of UA / CONF :

NJP:

- 19990407 :      Article (Failure to obey order or regulation – 19990124 engaging in sexual harassment by making deliberate or repeated offensive verbal comments and gestures of a sexual nature)
         Article (False official statements – with intent to deceive that he was innocent of sexual harassment)
         Article (General article – indecent language and oral communication of sexual nature )
          Awarded: Suspended:

- 20000228 :      Article (General article – indecent language and oral communication of sexual nature )
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20000301 :      For engaging in sexual harassment by making deliberate or repeated offensive verbal comments and gestures of a sexual nature toward DOD civilian employees in their work environment and living quarters that resulted in NJP held on 19990407.




Administrative Corrections to the Applicant’s DD 214

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

 “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 920226 UNTIL 981018 ”

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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 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 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       ,       .


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

Applicant’s Issues

 1.       Nondecisional issues: None

2.       Decisional issue : The Applicant contends his discharge characterization of service be upgraded based on his record of service , which was honorable apart from an isolated period of misconduct.

Decision

Date: 20 10 1007            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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

T he Applicant identif ied one decisional issue to the Board relating to the equity of his characterization of service at discharge . T he Board complete d a thorough review of the circumstances that l ed 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 and his current enlistment was marred by two for o f the Uniform Code of Military Justice (UCMJ) . The two non-judicial punishments were for violation of: Article 92 ( Failure to obey order or regulation; specifically, Article 1166, Unite d States Navy Regulation: Sexual Harassment ), Article 107 ( False official statements to MCAS Beaufort Provost Marshal’s Office ), and Article 134 ( General Article; 2 Specifications – Indecent Language ) .

 Based on the offenses committed by the Applicant, his command recommended administrative separation from the service . The NDRB reviewed the Applicant’s administrative separation package to determine if the Applicant had been afforded his rights during the separation process. When notified of the recommendation for a dministrative separation u sing the notification procedure, the Applicant elected to exercise right to consult with a qualified counsel , to submit a written statement , and he elected to exercise his right to an administrative discharge board .

The Applicant provided no additional documentation for consideration by the Board.

: (Decisional) ( ) . The Applicant contends his discharge warrants an upgrade based on his record of service, which was good apart from a single period of misconduct. 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. Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline. Violation of Articles 92 and the two specifications of violation of Article 134 are serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.

The Applicant’s record of service was marred by two non-judicial punishments for violation of the UCMJ related to sexually harassing numerous civilian females aboard Marine Corps i nstallations. Based on an allegation of sexual harassment and indecent language to Marine Corps Air Station Beaufort civilian female employees, the Applicant was dropped from Drill Instructor School and charges were p referred for trial by Special Court - Martial. The Special Court - Martial charges were withdrawn and the Applicant accepted non-judicial punishment in exchange for a second chance to complete his enlistment honorably . Within eight months of his first NJP , the applicant was found guilty of violating Article 134 (indecent language) of the UCMJ at a Squadron C ommander non-judicial punishment for sexual ly harass ing a civilian female employ e e aboard Marine Corps Air Station I wakuni Japan.

Given the gravity and the repetitive nature of the offenses , coupled with the discredit brought upon the Marine Corps by the Applicant, the command recommended that he be separated from the service for misconduct (commission of a serious offense) and that he receive an Under Other Than Honorable Conditions characterization of service. The Applicant elected his right to counsel and an administrative separation board. By a vote of 3-0, t he Board recommended the Applicant be discharged for misconduct – commission of a serious offense. Moreover , the Board recommended the Applicant’s characterization of service be General ( Under Honorable Conditions ) . The General Court - Martial Convening Authority approved the recommendations of the administrative discharge board and directed the Applicant to be separated , as stated.

When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and brought discredit upon the service. T he awarded characterization was appropriate; an upgrade would be inappropriate.
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 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 .


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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