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USMC | DRB | 2010_Marine | MD1000547
Original file (MD1000547.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091208
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)       NONE      Active:   20050706 - 20080401

Period of Service Under Review:
 Date of Current Enlistment: 200 8 0 4 0 2     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090306      H ighest Rank:
Length of Service : Y ea rs M on ths 5 D a ys
Education Level:        AFQT: 44
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / 2.1 ( )         Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (2)

Periods of UA / CONF :

NJP:

- 20081210 :      Article , Absence without leave (20080904-20081118)
          Article , Missing movement
         Awarded: Suspended:

SCM:

SPCM:

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:

          “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 050706 UNTIL 080401 ”
         
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 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 86 (absence without leave) and Article 87 (missing movement) .


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

Applicant’s Issues

 1.       The Applicant contends his misconduct was an isolated incident warranted by fear for his safety and well-being after being physically assaulted while deployed to Iraq and that his record of service warrants consideration.

Decision
Date: 20 1 1 0210            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
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 . The Applicant’s record of service included non-judicial punishment (NJP) f or violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( absence without leave , 20080904-20081118 ) and Article 87 ( missing movement ). I t did not include any 6105 counseling warnings, summary courts-martial, or special courts-martial for violation s of the UCMJ . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing , the Applicant exercised rights to consult with a qualified counsel and submit a written statement . He waived his right to request an administrative board .

The Applicant provided documentation that included a character reference and a copy of a Marine Corps Criminal Investigation Division (CID) investigation report.

: (Decisional) ( ) PARTIAL . The Applicant contends his misconduct was an isolated incident warranted by fear for his safety and well-being after being physically assaulted while deployed to Iraq and that his record of service warrants consideration. The Board conducted a thorough review of the Applicant’s service record as well as evidence provided by the A pplicant . T he CID investigation report revealed a command climate tolera nt of hazing, to include physical assault. It also confirmed the Applicant was assaulted on multiple occasions. According to the CID report, the Applicant was threatened with more bodily harm if he reported the assault s . The Applicant alleges in his statement to the CID investigator that after returning from Iraq and shortly after having surgery to correct an injur y sustained during one of the assault s , he was directed to deploy with the unit on an upcoming training exercise regardless of his physical condition , and while in a limited duty status. According to the report, o ut of fear for his safety and well-being, rather than deploy with the unit , he left the command, entering an u nauthorized a bsence status . In his statement to the NDRB, he further indicated that he did not trust his fellow Marines and left because he felt his life would be at risk if he were to report the assaults while at Camp Pendleton . After 76 days in a n unauthorized absence status , instead of r eturn ing to his parent command at Camp Pendleton, he surrender ed at M arine Corps Base, Quantico, V A and report ed the incident s . T he Board consider s the Applicant’s reason for wanting to leave the command understandable and offers some mitigation for his actions. However, h is actions are not totally excusable because t he Marine Corps has processes in place for filing grievances and reporting wrongdoing of peers and senior personnel that also allow anonymity , transfer to another command, and do not involve going absent without leave . The Applicant did not make use of any of th e se processes . After a thorough review of the Applicant’s record of service and evidence provided by the Applicant, the NDRB concluded the Applicant’s intention was not malicious and the misconduct was an aberration. However, d ue to lack of explanation of why such an extended period of absence was necessary , the Board voted to grant partial relief and upgrade the characterization to General and change the narrative reason to Secretarial Authority.

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, based on equitable grounds, the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY . 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, Automatic Upgrades, 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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