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USMC | DRB | 2010_Marine | MD1000165
Original file (MD1000165.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091020
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)       19990508 - 19990718     Active:   19990719 - 20021120 HON
                           Active:   20021121 - 20050526 HON
Period of Service Under Review:
Date of Current Enlistment: 20050527     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090520      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 31
MOS: 3043
Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle EX (2) (3) (5) (3) CoA LoA MCMAP (Gr a y belt)

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:     Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214
The Applicant was issued a Form DD- 215 , dated 20090529, administratively correcting B lock 4 ( a ) of the Applicant’s Form DD-214 to reflect properly his rank at discharge : Lance Corporal.

The NDRB note d additional administrative error(s) on the original DD Form 214:
B lock 4(b) , PAY GRADE, should read: “E-3 ”
Block 12(h), Effective date of Pay Grade, should read: “20090520 ”
“ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 990719 UNTIL 050526 ”
“ UNDER OTHER THAN HONORABLE CONDITIONS ”         

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 :        

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

Applicant’s Issues

 1 .       Decisional issues: ( Propriety ) Applicant contends he was separated improperly by an administrative board action following the command’s withdrawal (without prejudice) of charges that were pending at a trial by Special Court - Martial; as such, Applicant believes he warrants an upgrade of his characterization of service to Honorable .

Decision

 Date: 2010 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. The A pplicant identified one decisional issue to the board. The Board completed a thorough review of the Applicant’s military service record, medical records, the circumstances that led to his discharge, and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included no 6105 retention-counseling warnings and no judicial or non-judicial punishments . The Applicant enlisted into military service as a resident legal alien with no waivers required for enlistment. Prior to the current period of service in review by the NDRB, the Applicant had honorably completed two active duty enlistment periods without any break in service and had received numerous awards and decorations as reflected in his official service record. The Applicant completed two tours of duty in the fleet in his military occupational specialty and , upon re-enlistment, accepted orders to recruiting duty. The Applicant completed formal military training as a recruiter and was assigned the duties of a canvassing recruiter at a recruiting station. Additionally, t he Applicant applied to beco me a Naturalized United States c itizen in April of 2001 (results of request for Naturalization not found in record).

Bas ed on allegations of r ecruiter i mpropriety, the command directed that a formal command investigation be conducted to look into the facts and circumstances surrounding the allegations of recruiting impropriety. These allegations included effecting fraudulent enlistments and falsifying official documents to effect enlistment. The Command Investigation was completed on 21 April 2008 . After reviewing the investigation and considering the facts and circumstances unique to it , and after consulting with the Staff Judge Advocate, the C ommand preferred charges against the Applicant to trial by Special Court - Martial. For reasons not specified in the record, on 03 April 2009, the command withdrew and dismissed - without prejudice - the charges and specifications against the Applicant.

 On 06 April 2009, t he Command notified the Applicant that they were recommending to the Separation Authority that he be separated administratively from the Marine Corps Under Other Than Honorable Conditions for misconduct due to the commission of a serious offense. The basis of the Command’s recommendation was the numerous violations of the Uniform Code of Military Justice as outlined in the Command Investigation dated 21 April 2008. The Applicant acknowledged the recommendation for separation on 08 April 2009 ; he elected to waive his right to consult with qualified counsel or submit a statement to the Separation Authority. The Applicant did cho o se to exercise his right to a have a hearing before an Administrative Separation Board. On 07 April 2009 , the Commanding Officer appointed the Administrative Separation Board and on 16 April 2009, the board was convened to hear the case.

 By unanimous vote, t he board found that a preponderance of the evidence presented proved all the acts or omissions alleged in the notification letter ; specifically , that the Applicant had committed m isconduct due to the commission of a serious offense. The Administrative Separation Board recommended the Applicant be separa ted with a characterization of service of Under O ther Than Honorable Conditions and that the separation not be suspended. The Commander concurred with the recommendations and forwarded his endorsement as such to the Separation Authority on 20 April 2009. The Separation Authority approved the administrative board’s findings and recommendations on 15 May 2009 and directed that the Applicant be separated from the Marine Corps by reason of misconduct – commission of a serious offense pursuant to paragraph 6210.6 of the Marine Corps Separation and Retirement Manual (MARCORS E PMAN) . Furthermore, he directed that the Applicant’s character of discharge be Under Other Than Honorable Conditions. In accordance with paragraph 63 0 8 of the MARCORSEPMAN, the proceedings were reviewed and were determined to be sufficient in law and fact prior to the Separation Authority taking final action .

: (Decisional) ( ) . The Applicant contends that his discharge was unjust and should be upgraded based on the fact that the charges and specifications, which were referred to trial by S pecial C ourt -M artial, were withdrawn and dismissed and that his service was otherwise honorable. 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. The Applicant provided no documentation to the board to rebut the government ’ s presumption of regularity. The Applicant submitted a letter o f recommendation from a previous senior enlisted leader , a personal statement, and other documents that were already included in his official military service record.

Whenever a Marine is involved in misconduct, as described in paragraph 6210.6 of the MARCORSEPMAN, commanders are directed to process the Marine for separation, unless rehabilitation and retention are warranted. The characterization of service for Misconduct normally shall be U nder O ther T han H onorable C onditions, but characterization as G eneral ( U nder H onorable C onditions) may be warranted in some circumstances. Moreover, despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The charges specified against the Applicant were serious offenses per the UCMJ : punishable by a punitive discharge and confinement, if adjudicated by a S pecial or G eneral C ourt- M artial. The Applicant ’ s command opted to not pursue the punitive discharge for the violations of the UCMJ, instead cho o s ing the more lenient administrative discharge process to address the Applicant’s misconduct.

Specific to the Applicant’s issue, paragraph 6210.6 of the MARCORSEPMAN provides a basis for separation of a Marine by the commission of a serious military or civilian offense under the following circumstances: (1) when the specific circumstances of the offense warrant separation; and (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ. This provision of the MARCORSEPMAN further specifies that a military or civilian conviction is not required for discharge. The a dministrative discharge board determined that a preponder ance of the evidence presented proved all the acts or omissions alleged in the notification letter; specifically that the Applicant had committed misconduct due to the commission of a serious offense. Since the charges and specifications alleged against the Applicant warranted a punitive discharge, the recommendation and process for discharge by administrative separation was proper and was in accordance with the guidance contained in paragraph 6210.6 of the MARCORSEPMAN . Therefore, the NDRB determined that relief is not warrante d for proprietary issues.
When notified of the administrative separation process using the board notification procedure, the Applicant waived his right to consult with a qualified counsel and his right to submit a written statement; he did elect that an administrative discharge board hear his case. The Applicant specifically acknowledged his understanding that the basis for the recommendation for separation was his numerous violations of the UCMJ and that the command was recommending separation with a characterization of service Under Other Than Honorable Conditions. The administrative discharge board was convened and recommended the Applicant be separated for Misconduct - Commission of a Serious Offense.

When the quality of a service member 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 discharge “Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. The Administrative Separation Board members determined that 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. Therefore, they recommended that the Applicant’s characterization of service reflect that significant departure with an Under Other Than Honorable Conditions characterization of service. The NDRB determined that the awarded characterization of service was appropriate, proper, and equitable; an upgrade would be inappropriate. 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 Additional Reviews and Post-Service Conduct .

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 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 s 107 and 134.


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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