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USMC | DRB | 2010_Marine | MD1000698

Original file (MD1000698.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100105

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)       19910424 - 19910603     Active:          19910604 - 19950109
                                             19950110 - 19980622

Period of Service Under Review:
Date of Current Enlistment: 19980623     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19990122      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 96
MOS: 6025 / 2531 / 9962
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol MM (3) CoC (3) (2) LoA (6) CoA N / MCPI

Periods of UA / CONF :

NJP:     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 910604 UNTIL 980622 ”

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 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 134 (Adultery) .

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

Applicant’s Issues

1 . Decisional issues : ( Propriety/ Equity) The Applicant does not contest the issuance of a discharge for the offense of Adultery; he does contest the characterization of his service as Under Other Than Honorable Conditions for the offense. Applicant contends that his prior 7 years of honorable and faithful service , with no other misconduct , warrants consideration for an upgrade in the characterization of his service at discharge.

Decision

Date: 20 1 1 0324 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 one decisional issue for the NDRB’s consideration; additionally, the NDRB 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’s record of service reflects entry into the military with a waiver to enlistment standards due to pre-service use of marijuana. He enlisted at age 20 on an initial four- year contract as a Communications Marine. The Applicant’s service record reflects completion of seven years of honorable service, which culminated with an immediate reenlistment on 23 June 1998 as a n Aircraft Power Plants Mechanic (Rolls Royce Pegasus) for four years.

During the current enlistment period, the Applicant received no 6105 retention-counseling warnings and was not subject to any administrative or punitive punishments. However, based on a Naval Criminal Investigati ve Service (NCIS) investigation, the Applicant was charged with having an adulterous affair with a married women not his own wife. Additional aggravating factors were that the women involved in the affair was the wife of a deployed Marine of lesser rank than t he Applicant and from his assigned unit. This investigation was a companion case developed out of a larger investigation into the murder of a Marine’s s pouse aboard Marine Corps Base Yuma , Arizona. The Applicant’s command opted not to pursue administrative or judicial proceedings in the Applicant’s case and instead, referred him directly to an administrative discharge board for misconduct , specifically, the commission of a serious offense in that the Applicant had violated Article 134 ( A dultery) of the Uniform Code of Military Justice.

The Applicant was notified in writing of the Commanding Officer’s recommendation for administrative separation . The Applicant was advised that the basis for separation was MISCONDUCT (Commission of a Serious Offense) in accordance with paragraph 6210.6 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . The Command further advised the Applicant that the least favorable characterization of service he could receive at discharge was a n Under Other Than Honorable Conditions characterization of his service. The NDRB reviewed the Applicant’s administrative separation package; the Applicant acknowledged – in writing – that he understood that the least favorable characterization of service at discharge was Under Other Than Honorable Conditions. He further elected to consult with qualified legal counsel and elected to present his issues before an administrative discharge board .

On 03 September 1998, the Commanding Officer convened the administrative discharge board as requested by the Applicant. By a vote of 4-0, the members of the board unanimously concurred that the preponderance of the evidence presented supported the factual allegation of misconduct. Further, by a vote of 4-0, the administrative discharge board recommend ed that the Applicant be separated from the service and that the characterization of service at discharge be Under Other Than Honorable Conditions. On 16 December 1998, the General Court - Martial Convening Authority ( Separation Authority ) directed that the Applicant be separated for MISCONDUCT (Commission of a Serious Offense) – having agreed with the findings of the board that the evidence of record supported the factual basis for discharge and that the characterization of service , as recommended , was warranted. On 22 January 1999, the Applicant was discharged with a n Under Other Than Honorable C onditions characterization of his service and was further advised that he was not recommended for reenlistment or reentry.

: (Decisional) ( ) . The Applicant does not contest the issuance of a discharge for the offense of Adultery; he does , however , contest the characterization of his service as Under Other Than Honorable Conditions for the offense. The Applicant contends that his prior 7 years of honorable and faithful service, with no other misconduct, warrants consideration for an upgrade in the characterization of his service at discharge.

The NDRB 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. In accordance with the MARCORSEPMAN , service members may be separated based on the commission of a serious military or civilian offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court - martial for the same or closely related military offense. Furthermore, administrative separation for the commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence. Violation of Article 1 34 ( Adultery) of the UCMJ warrants punitive discharge and confinement for up to 1 year , if adjudicated at trial by special or general court - martial. The Applicant’s Commanding Officer, pur suant to an administrative discharge board finding that a preponderance of the evidence presented supported a finding that the Applicant did commit the specified misconduct , recommended the Applicant for separation.

Despite a servicemember’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Nav al S ervice in order t o maintain good order and discipline of the command . The Applicant was afforded the opportunity to seek legal counsel and to present his case before an administrative discharge board . He exercised those rights and presented his case to a properly constituted discharge board. Based on a review of the evidence and the circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based on M ISCONDUCT ( C ommission of a S erious O ffense) as the basis for discharge. As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge. Accordingly, relief b ased on propriety is denied.

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. 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 Applicant completed his first two enlistment periods with an Honorable characterization of those periods of service , however, each period of enlistment is an independent obligation and characterization of service is determined for that specific period. Based on the seriousness of the offense committed during the Applicant’s current enlistment , the administrative discharge board recommended separation with an Under Other Than Honorable Conditions characterization of service at discharge. The Separation Authority reviewed the evidence of record and the gravity of the charges and concurred. Based on the Applicant’s record of service and the additional documentation provided by the Applicant , the NDRB, by unanimous vote, determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the A pplicant’s service at discharge. The NDRB’s vote was unanimous that an upgrade is not appropriate and that relief is not warranted; therefore, the character of the discharge shall not change. 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 .

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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USMC | DRB | 2010_Marine | MD1000698

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