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USMC | DRB | 2010_Marine | MD1000433
Original file (MD1000433.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091127
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)       199 4 0428 - 19940717     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19940718     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19960619      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 31
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      MM

Periods of CONF :

NJP:

- 19960320 :       Article , 3 specifications
         Specification 1: 0731-0855, 19960131
         Specification 2: 0731-0955, 19960228
         Specification 3: 0731, 19960306 – 0741, 19960307, 1 day
          Awarded : Susp ended: Suspension vacated 19960325

SCM:     SPCM:    C C:

Retention Warning Counseling :

- 19950808 :       For failure to report to appointed place of duty in a timely manner, proper wearing of the Marine uniform and proper personal hygiene. You are to pay particular attention to eliminating your belligerent and disrespectful conduct toward your peers and superiors alike.

- 19960130 :       For the deficiencies in performance and conduct which have been identified as the following: Indebtedness to civilian organizations and domestic violence.

Administrative Corrections to the Applicant’s DD 214

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

         “ 94 07 18 ”
         “ 01 11 02 ”
         “ (1) 960306 ”

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 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

Applicant’s Issues

 1.       Nondecisional issues : The Applicant contends that c lemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

 2.       Decisional issues . (Equity/Propriety) The Applicant contends that: (1) u nder current standards, he would not receive the type of discharge he did ; (2) his average conduct and proficiency ratings were good ; (3) he received a wards and decorations ; (4) he ha s been a go o d citizen since discharge ; (5) his record of NJP indicates only isolated minor offenses ; (6) his ability to serve was impaired by my youth and immaturity ; (7) his ability to serve was impaired because of marital, family, and childcare problems ; (8) Financial problems impaired his ability to serve ; (9) p sychiatric problems he had impaired his ability to serve ; (10) t he punishment he received was too sever e compared with today’s standards ; and (11) , his command abused its authority when it decided to discharge him and decided to give him a bad discharge.

Decision

Date: 20 1 1 021 0            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 NDRB 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 11 decisional issues for the NDRB’s consideration. Additionally, the Applicant provided post-service medical evaluations and a letter of recommendation from his former spouse. The Applicant provided no documentation to rebut the NDRB’s presumption of regularity in governmental affairs.

The Board 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 enlisted into the armed forces on an open contract with a moral waiver for pre-service theft and for exceeding the maximum weight standards of the service. The Applicant acknowledged his complete understanding - in writing - of the Marine Corps Policy on Illegal Drug Use on 21 April 1994. The Applicant’s record of service contained two paragraph 6105 retention-counseling warnings and one non judicial punishment (NJP) for violation of Article 86 ( 3 specifications of Absent without leave and failure to be at appointed place of duty) of the Uniform Code of Military Justice (UCMJ).

The Applicant was separated from the military service pursuant to paragraph 6419 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) – Separation in Lieu of Trial by Court Martial. The Commanding Officer determined that the Applicant’s purported mis conduct was detrimental to the good order and discipline of the service and that the misconduct warranted punitive action , and they referred the charges to trial by court martial. The Applicant requested administrative separation in lieu of trial by court martial (SILT). The command approved the request for administrative separation and the Applicant was discharged under other than honorable conditions in accordance with his request .

: (Non-Decisional). The Applicant seeks clemency , because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge (Under Other Than Honorable Conditions) . Clemency is an act of leniency that reduces the severity of the punishment imposed regarding a punitive discharge adjudged by a court martial case. The Applicant did not receive a punitive discharge. In response to the Applicant's clemency request, the Board cannot form the basis of relief for the Applicant for this issue. The Applicant’s case will be considered under the pertinent standards of equity and propriety to determine if any factors in his particular case merit a change in narrative reason for separation or upgrade in the characterization of service at discharge. Nondecisional issue; relief not considered.



: (Decisional) ( ) . The Applicant identified 11 separate reasons why his discharge was inequitable and why it warrants a change or upgrade by the NDRB. Those eleven reasons are: (1) u nder current standards, he would not receive the type of discharge he did ; (2) his average conduct and proficiency ratings were good ; (3) he received awards and decorations ; (4) he has been a go o d citizen since discharge ; (5) his record of NJP indicates only isolated minor offenses ; (6) his ability to serve was impaired by his youth and immaturity ; ( 7) his ability to serve was impaired because of marital, family, and childcare problems ; (8) f inancial problems impaired his ability to serve ; (9) p sychiatric problems impaired his ability to serve ; (10) the punishment he received was too sever e compared with today’s standards ; and (11) , his command abused its authority when it decided to discharge him and g a ve him a bad discharge.

In reviewing discharges, the NDRB 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 rebut the NDRB’s presumption of regularity in the processing of the administrative separation in lieu of trial by court martial.

The Applicant’s Official M ilitary Service R ecord does not contain a copy of the separation proceedings for the NDRB’s review . In the absence of a complete discharge package, the NDRB presumed regularity in the conduct of governmental affairs; as such, the NDRB presumed that the Applicant requested discharge to escape trial by court martial as is required for this type of separation . In order to warrant separation in lieu of trial by court martial, the Applicant must have request ed administrative separation - in writing - for the good of the service to escape charges that ha d been preferred against the A pplicant and referred to trial by a Special Court Martial or above. The request for separation in lieu of trial contains certain basic requirements - which must be satisfied - before receiving endorsement by counsel and approval by the Separation Authority. In that request, the Applicant must clearly affirm that h is rights were explained to h im thoroughly - to include h is right to consult with qualified counsel . Furthermore, the Applicant must admit h is guilt to the charges preferred against h im and must further certif y that he had a complete understanding of the negative consequences of h is actions, the narrative reason for h is separation, and the likely characterization of service upon separation - Under Other Than Honorable Conditions.

The Applicant must also acknowledge that , if discharged with an OTH, it might deprive h im of virtually all veterans' benefits and t hat 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. On 04 June 1996 the Applicant’s request for separation was reviewed and endorsed by the chain of command and forwarded to the Separation Authority; on 18 June the Separation authority approved the Applicant’s request to be separated and directed he be discharged Under Other Than Honorable Conditions with a narrative reason for separation of “ In Lieu of Trial by Court Martial. ” Given the requirements necessary to receive an administrative separation in lieu of trial by court martial and the legal review associated with it, the NDRB determined that t he Applicant was separated properly from the naval service in accordance with paragraph 6419 of the MARCORSEPMAN. A ccordingly, relief based on propriety is not warranted.

Characterization of service at discharge is based on recognition of a Sailor’s performance and conduct and is not necessarily dependent upon the narrative reason for separation. 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) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge 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 NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment , such as a Navy ch aplain, m edical or m ental h ealth professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.

The Applicant contends that his mis conduct was minor, that under current standards he would not receive the discharge he did, and that the punishment received was too harsh compared with today’s standards. The Applicant was involved in misconduct that warranted the unit Commander to refer charges for adjudication by trial at court martial; t his usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court martial. T he Commanding Officer determined that the charges preferred against the Applicant were egregious enough to warrant trial by court martial in order to maintain good order and discipline in the service. The Applicant then elected administrative separation in lieu of trial by court martial and admitted his guilt to the charges as specified. Although the Applicant may feel h is youth , immaturity , and personal issues were the underlying causes of h is misconduct, the record clearly reflects misconduct that would warrant punitive action and which demonstrated that he was unfit for continued service. The evidence of record does not demonstrate that the Applicant was not responsible for h is conduct or that he should not be held accountable for h is actions. The NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper , was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances. Accordingly, relief is denied.

The Applicant contends that psychiatric problems impaired his ability to serve. The Applicant ’s record indicates that he was seen and evaluated by an appropriately credentialed mental health care provider following admission t o a hospital emergency room due to a suicidal gesture. The Applicant was diagnosed subsequently with a Depressive Disorder, N ot Otherwise Specified resulting from increased stress related to marital disco rd . The Applicant was released to mil itary custody for follow up and treatment . The evidence of record does not indicate that the Applicant was recommend for, or that the command intended to, separate the Applicant pursuant to a Convenience of the Government – Personality Disorder separation. Furthermore, in accordance with the MARCORSEPMAN, s eparation for a personality disorder is not appropriate when separation is warranted for any other reason (e.g., member meets minimum criteria for misconduct processing). The record of evidence reflects the Applicant met the requirements for processing by reason of separation in lieu of trial by court martial. As such, the NDRB determined that the separation was proper and equitable . Relief denied.

The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the characterization service, reflected one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. The awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances. As such, t he NDRB determined that the Applicant’s characterization of service at discharge was appropriate. Accordingly, relief is denied.

Finally, the Applicant contends that he was awarded the Good Conduct Medal for the period 20 March 1996. This is incorrect. The entry in Block 18 of his DD Form 214 that states “Good Conduct Medal Period Commences: 960320” indicates the date of his last misconduct and start date for any subsequent service that might result in a Good Conduct Medal, which is awarded for three consecutive years of misconduct-free service. The Applicant served for 2 years, 2 months, 3 days and had misconduct during his service.

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 his 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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