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USMC | DRB | 2010_Marine | MD1000085
Original file (MD1000085.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091008
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)       20020123 - 20020219     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020220     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070827      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 67
MOS: 6541
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) , Pistol , , , , , , , CoC (2), LoA , MM

Period of UA :
Periods of Confinement: 49 Days (20051102-20051220)

NJP:

SCM:

SPCM:

- 20051102 :       Art icle (Willfully disobey a lawful order, engaging in sexual intercourse with a married woman not his wife)
         Article 134 (General article), 3 specifications
         Specification 1: Wrongfully co mmit indecent acts with a married woman not his wife, placing his penis in her mouth; and placing his mouth on her vagina.
         Specification 2: Wrongfully having sexual intercourse with a married woman not his wife on multiple occasions.
         Specification 3: Wrongfully commit indecent assault upon a married woman not his wife, by grabbing her hips with his hands and saying “I have my dancing partner for the night” or words to that effect, with intent to gratify his sexual desire.        
         Sentence : CONF 120 days (20051102-20051220, 49 days)

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:

          “ MARCORSEPMAN 1105 SPCMSONO 07-1005 dtd 20070810 ”
        
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:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF 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)(a), 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.       Nondecisional issues : Applicant seeks upgrade in characterization of service in order to re-enlist.

2.       Decisional issues : (Clemency/Equity) Applicant contends that his misconduct was an isolated incident in what was otherwise an honorable record of service.

Decision

 Date: 20 10 1110            Location: Washington D.C .         R epresentation :

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

 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. With respect to a discharge adjudged by a 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. In response to the Applicant's clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.

The Applicant’s record of service is marred with a Special Court-Martial conviction for violations of the Uniform Code of Military Justice (UCMJ); specifically, violation of Article 90 ( Assault, willfully disobeying superior commissioned officer; specifically, disobedience of a lawful military protective order ) and violation of Article 1 34 ( 3 specifications: (1) Indecent acts with a wom a n not his wife; (2) wrongful sexual relations with a married wom a n, not his wife; and (3) indecent assault upon a wom a n, not his wife. ) Additionally, t he Applicant’s initial entry into the Marine Corps included a Recruiting Station, Commanding Officer waiver for pre-service use of marijuana.

 V iolation of Article 90 and Article 134 are serious military offenses that warrant a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial. In this specific case, the Command referred the Applicant to a Special Court-Martial instead of opting for the more lenient administrative discharge process.

The Applicant signed a pre-trial agreement, pled guilty at a Special Court-Martial, was found guilty in trial by judge alone, and adjudged a sentence of a Bad Conduct Discharge, confinement for 120 days, forfeiture of pay, and reduction in rank to Private (E-1). The Convening Authority ordered the adjudged punishment executed but suspended all confinement in excess of 60 days. The Applicant was confined for 49 of the 120 days adjudged by the Trial Judge. The case was reviewed and affirmed by the U.S. Navy–Marine Corps Court of Criminal Appeals. Additionally, the Naval Clemency and Parole Board reviewed the case and determined that no clemency was warranted.

 : (Nondecisional) The Applicant seeks clemency for a change in characterization of service from a Bad Conduct Discharge to an Honorable discharge i n order to re-enlist . The NDRB has no authority or jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces . T he NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records 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. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.




Issue 2: (Clemency/Equity) RELIEF NOT WARRANTED. The Applicant contends that his misconduct was an isolated incident in what was otherwise an honorable record of service ; as such, he warrants clemency and an upgrade in his characterization of service to H onorable.

In response to the Applicant’s request for clemency, relevant and material facts stated in a trial by court-martial are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency - an act of leniency that reduces the severity of the punishment imposed.

The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant had successfully completed Marine Corps Recruit Training , Marine Combat Training, and a viation ordnance equipment repair s chool . The Applicant had been assigned to his Fleet Marine Force Squadron for over two years and had deployed in support of Operation IRAQI FREEDOM . At the time of the Applicant’s misconduct , his service record reflected no prior misconduct or prior retention counseling warnings and he was recently approved for re-enlistment . The NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct.

Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the N aval service in order to maintain good order and discipline. V iolation of Article 90 and Article 134 are serious offense s , punishable by a Bad Conduct Discharge and confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. The Applicant was counseled by his Commanding Officer regarding his misconduct with married women, not his wife . He was further issued a Military Order - in writing - to abstain from any further misconduct of this nature and to not have any contact with a military spouse, not his wife. The Applicant failed to comply with the counseling , and he deliberately and consciously continued to engage in willful misconduct in violation of the Military Order and the Uniform Code of Military Justice.

The NDRB conducted a thorough review of the available evidence, to include the Applicant’s Summary of Service , Service Record e ntries , the transcript of the Special Court-Martial proceeding , and the overall discharge process . The reason for discharge - convicted by S pecial C ourt- M artial - is absolutely appropriate. Furthermore, based on this review , and the facts and circumstances unique to this case, t he Board determined that the sentence awarded the Applicant at his court-martial was equitable and that relief on the basis of clemency was not warranted. As such, by a vote of 5 - 0 , the NDRB determined that the characterization of service shall remain a “Bad Conduct Discharge ” and the Narrative Reasons for Separation shall remain “Court Martial.” 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 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 Additi onal Reviews, Re-enlistment , 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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