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USMC | DRB | 2010_Marine | MD1000910

Original file (MD1000910.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100225

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)       20031203 - 20040720     Active:

Period of Service Under Review:
Date of Current Enlistment: 20040721     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080131      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 53
MOS: 6153
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

SCM:

- 20070907 :       Art icle , 3 specifications , 20070516
         Specification 1: Steal one MFCU debit card
         Specification 2: Steal U.S. currency of a value of about $20 1 .95
         Specification 3: Steal U.S. currency of a value of about $300.00
         Sentence : 45 DAYS Hard Labor without CONF

SPCM:             CC:

Retention Warning Counseling :

- 20061229 :       For violation of A rticle 91 and 111 of the UCMJ, SNM has multiple motor vehicle violations in the last 90 days and lied to his chain of command concerning these violations.

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT ”

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:          Substance Abuse:                  Criminal Records:
         Family/Personal Status:                   Community Service:                References:
         Additional Statements :
                  From Applicant:          From Representat ion :               From Congress member :

         Other Documentation :

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 91 , 111, and 121 .

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

Applicant’s Issues

1.       Applicant contends his discharge was improper as it was not part of his court-martial sentence.
2.       Applicant contends his misconduct was an isolated incident.

Decision

Date: 20 1 1 0 4 07          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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warning (29 Dec 2006) for violation of Uniform Code of Military Justice ( UCMJ ) Article s 91 and 111 , to include multiple motor vehicle violations in the previous 90 days (14 Sep 2006, 85 mph in a 55 mph zone; 29 Nov 2006, reckless driving in designated school zone on base; and on unspecified date, 65 mph in a 45 mph zone) and lying to his command regarding these incidents and s ummary court-martial for violations of the UCMJ: Article 121 ( Larceny, 16 May 2007, 3 specifications: Stole ATM card and PIN from a Corporal; u tilized ATM and PIN to obtain $200 cash; utilized ATM card and PIN to obtain $300 cash ) . Based on the offenses committed by the Applicant, his command referred charges on him for trial by special court-martial. After consulting with qualified counsel, the Applicant submitted a request to his commanding officer (dated 31 Aug 2007) for a pre-trial agreement in which he agreed to plead guilty to the pending charges in exchange for a trial by summary court-martial, thereby avoiding a possible felony conviction and punitive discharge, and to also waive his right to an a dministrative s eparation b oard. The Applicant’s commanding officer accepted his request , and the Applicant subsequently stood trial and was found guilty at summary court-martial on 7 Sep 2007. On 5 Nov 2007, the Applicant was notified of pending a dministrative separation processing using the procedure . Upon notification, the Applicant waived his right to consult with a qualified counsel , but elected his right to submit a written statement. In accordance with his previously approved pre-trial agreement request, the Applicant waived his right to request an administrative separation board. The Applicant was discharged from the Marine Corps on 31 Jan 2008 with an Under Other Than Honorable Conditions discharge for Misconduct (Commission of a Serious Offense).

: (Decisional) ( ) . The Applicant contends his discharge was improper as it was not part of his court-martial sentence . While pending trial by s pecial c ourt- m artial, the Applicant , after consulting with qualified counsel, submitted a request to his commanding officer f or a pre-trial agreement in which he agreed to plead guilty to the pending charges in exchange for a trial by summary court-martial, thereby avoiding a possible felony conviction and punitive discharge . In this request he also agreed to waive his right to an administrative separation board if the request was approved . After considering the facts of the case, t he Applicant’s commanding officer accepted his pre-trial agreement request and the Applicant subsequently stood trial and was found guilty at summary court-martial on 7 Sep 2007. In accordance with the Marine Corps Separation and Retirement Manual, a command may choose to administratively separate a service member for misconduct regardless of whether courts-martial or NJP proceedings are conducted . On 5 Nov 2007, the Applicant was notified of pending administrative separation processing using the procedure. Upon notification, the Applicant waived his right to consult with a qualified counsel, but elected his right to submit a written statement. In accordance with his previously approved pre-trial agreement request, the Applicant waived his right to request an administrative separation board and was discharged from the Marine Corps on 31 Jan 2008 with an Under Other Than Honorable Conditions discharge. After careful examination of all the facts and circumstances surrounding the Applicant’s case , the Board determined that the administrative separation of the Applicant was proper, equitable , and in accordance with the applicable directives in effect at the time of his separation. Therefore, this issue does not provide a basis upon which relief can be granted. Relief d enied.

: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident. Despite a service member’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline ; violations of UCMJ Article 121 meet this standard. Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or nonjudicial punishment. The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as H onorable. A discharge U nder O ther T han H onorable C onditions 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’s service contained violation s of UCMJ Article s 91, 111, and 121 , each of which constitutes the commission of a serious offense. Th ese specific violation s are punishable by confinement up to six months and a Bad Conduct Discharge if adjudicated by punitive c ourts- m artial. The Applicant avoided a possible felony conviction and punitive discharge after obtaining approval for the pre-trial agreement he requested from his commanding officer. The Applicant’s conduct , which forms the primary basis for determining the character of service , reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines and falls far short of what is required for an upgrade in the characterization of service. After considering all the evidence and the facts surrounding the Applicant’s case, the Board determined this issue did not provide a basis for which relief could be granted. Relief d enied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and administrative separation 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, 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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USMC | DRB | 2010_Marine | MD1000910

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