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USMC | DRB | 2010_Marine | MD1001149
Original file (MD1001149.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100407
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)       20021003 - 20030526     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030527     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070724      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 45
MOS: 0612
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , , , , (x2), Cert Com

Periods of UA: 20060927 – 20070724 (298 days) (IHCA)

NJP:

- 20060926 :      Article , 2 specifications (Disobedience of a lawful order or regulation)
         Specification 1: violate a Military Protective Order, an order it was his duty to obey
         Specification 2: did violate a direct order from a GySgt, which it was his duty to obey
         Article , 2 specifications (Assault)
         Specification 1: Did assault military depend e nt child by biting her leg
         Specification 2: Did assault military depend e nt spouse by biting her ear
         Awarded: (E-3), (45/45) , (2/3 pay x 2 months)
         Suspended:

SCM:    SPCM:   

CC:

- 20070205 :      Offense: PC273A (Superior Court of California) - Cruelty to a child likely to produce great bodily harm or death .
         Sentence : To be confined in the California State Prison system for a period of four (4) years.

Retention Warning Counseling :

- 20050808 :       For Disrespect and insubordinate conduct toward a noncommissioned officer. Failure to take the specified corrective actions may result in administrative separation, judicial proceedings, or limitation on further service.



- 20060510 :       For being investigated for alleged abuse of your spouse and child stemming from a domestic disturbance on 30 March 2006 in which you are accused of inflicting blunt trauma to the Child ’ s back and shoulder area. Issued a direct order (MPO) to stay away from your spouse’s residence until told otherwise from this command. Violation of my direct order or failure to take the specified corrective actions will result in judicial or adverse administrative action including but not limited to administrative separation from the Marine Corps.

- 20060 6 29 :       For domestic violence counseling. A Case Review Committee was held for domestic violence incident that took place on 17 May 2006 that determined that the assault of your spouse (biting her ear) was substantiated. You were determined to be the primary aggressor and categorized as a level III abuser with risk for reoccurrence being high. Failure to take the specified corrective actions and any further violations of the UCMJ may result in judicial or adverse administrative action, including but not limited to administrative separation.

- 20060716 :       For driving on a suspended license aboard Marine Corps Installation. Your base driving privileges were previously suspended for failing to appear at a Magistrate Hearing in May 2005. Failure to adhere to the suspension will result in judicial or adverse administrative action including but not limited to administrative separation from the Marine Corps.

- 20060717 :       For domestic violence counseling. A Case Review Committee was held for domestic violence incident that took place on 30 March 2006 that determined that the assault of your 3-year-old stepdaughter was substantiated. You were determined to be the primary aggressor and categorized as a level V abuser with risk for reoccurrence being high. Failure to take the specified corrective actions will result in judicial or adverse administrative action including , but not limited to , administrative separation from the Marine Corps.

- 20070302 :       For MISCONDUCT due to a Civilian Conviction. On 17 May 2006 you were arrested for domestic v iolence against your wife and stepdaughter. On 5 February 2007, you were found guilty of violating California State Code PC273A (cruelty to a child likely to produce great bodily harm or death). You are being processed for administrative separation in accordance with para 6210.7 of the MARCORSEPMAN for misconduct due to a civilian conviction.

Administrative Corrections to the Applicant’s DD 214

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





Pertinent Regulation/Law

 A. Paragraph 6210, Misconduct of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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 92 and Article 128.



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

Applicant’s Issues

 1.       Nondecisional issues : The Applicant seeks an upgrade to facilitate reenlistment in the Armed Forces.

2.       Decisional issues : The Applicant contends that he was young and immature at the time and made a mistake for which he has paid the price for , but that his service to his Country and Corps was honorable up to his mistake.

Decision

 Date: 20 1 1 04 29            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 identif ied one decisional issue for the NDRB’s consideration; in addition, 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 military service at age 2 2 on a 4 - year contract with no extensions. He enlisted with a Marine Corps Recruiting District waiver to enlistment standards due to depend e nts. Throughout his enlistment period, the Applicant received six 6105 retention-counseling warnings. The Applicant’s period of enlistment also include d a nonjudicial punishment for violation of the following Articles of the Uniform Code of Military Justice:

•         Article 92 ( F ailure to obey lawful order or regulations - 2 specifications ; specifically, violating a military protective order issued to him by his commanding officer - an order it was his duty to obey, and violating the direct order of a Gunnery Sergeant (E-7), a lawful order it was his duty to obey)
•         Article 128 ( Assault - 2 Specifications ; Did assault a military depend e nt (child) by biting her leg and did assault a military depend e nt (spouse) by biting her ear) .

The Applicant is a combat veteran, having conducted combat operations in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM during two separate combat deployments. He was awarded the Combat Action Ribbon for individual actions against an opposing enemy force on 19 May 2004. Due to his veteran status, the Applicant warranted screening for Post - Traumatic Stress Disorder (PTSD) prior to any involuntary discharge action. Due to the Applicant’s incarceration by civilian authorities, this policy requirement was unable to be complied with; therefore, it was waive d by the Separation Authority.

T he Applicant’s service record includes 298 days of Time Lost (20060927 – 20070724) due to being in the hands of civilian authorities resultant from his arrest and subsequent incarceration pending civilian trial. The record of service reflects that the Applicant was arrested on approximately 17 May 2006 by California law enforcement and that he remained in the hands of civilian authorities until his criminal trial and conviction by the Superior Court of California on 05 February 2007. A California Superior Court sentenced the Applicant to 4 years of incarceration in the California penal system.

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation on 2 March 2007 following the civilian court conviction and waiver of appeal . The Applicant was advised that the basis for the proposed separation was MISCONDUCT (Civilian Conviction) in accordance with paragraph 6210.7 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). The Command further advised the Applicant that the least favorable c haracterization of service he could receive at discharge was an Under Other Than Honorable Conditions characterization of his service.

The NDRB reviewed the Applicant’s administrative separation package; t he Applicant acknowledged th e above notification in writing and elected to waive his right to consult with qualified counsel. Furthermore, he chose not to request a hearing before an administrative board and chose not to include a statement to the Separation Authority regarding the purported misconduct. On 16 May 2007, the Applicant’s command forwarded their recommendation for discharge with an Under Other Than Honorable Conditions characterization of service . The characterization of service determination was based on the Applicant’s civilian conviction for cruelty on a child likely to inflict grievous bodily injury or death , coupled with his in - service misconduct and h is numerous retention-counseling war n ing s for domestic violence and other misconduct . On 14 June 2007, f ollowing a review for sufficiency in law and fact by the Staff Judge Advocate , the Separation Authority determined that the evidence of record supported the basis for discharge and that the characterization of service, as recommended, was warranted . As such , the Separation Authority approved the discharge action and designated the basis for separation as MISCONDUCT ( Civilian Conviction ) pursuant to paragraph 6210. 7 of the MARCORSEPMAN. On 24 July 200 7 , the Applicant was discharged with an Under Other Than Honorable Conditions characterization of h is service and was further advised that he was not recommended for reenlistment or reentry and was assigned an RE-4 reentry code on his DD Form 214.

Nondecisional Issue - The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions) so that he may be eligible to reenlist in the Armed Forces . There is no requirement, or law, that grants re-characterization solely on the issue of improving reenlistment opportunities; regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces ; as such, it is prohibited from changing a reentry code. The Applicant may petition the Board for Correction of Naval Records (BCNR) using DD Form 1 49. Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

( Decisional Issues) ( ) . In the Applicant’s personal statement to the NDRB, he contends that he was young and immature at the time and made a mistake for which he has paid the price , but that his service to his Country and Corps was honorable up to his mistake. In accordance with paragraph 6210. 7 of the MARCORSEPMAN, c ommanders may process Marines for separation when civilian authorities (foreign or domestic) have convicted a Marine or taken action that is tantamount to a finding of guilty, including similar adjudication in juvenile proceedings, when: (1) the specific circumstances of the offense warrant separation; (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ; or (3) the sentence by civilian authorities includes confinement for 6 months or more without regard to suspension or probation. The Applicant’s civilian conviction for violation of California Penal Code 273(a) is closely related to violation of Article 128 of the UCMJ: aggravated assault with a dangerous weapon or other means of force to produce death or grievous bodily harm. When committed upon a child under the age of 16 years, this violation could warrant punitive discharge and confinement for up to five years, if adjudicated at trial by S pecial or G eneral C ourts -M artial. Additionally, the Applicant was sentenced to a period of confinement of four years, exceeding the minimum requirement of six m onths for consideration for discharge. Based on a review of the evidence of record and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct did properly satisfy the requirements established by the MARCORSEPMAN for separation based on the commission of a civilian offense as a basis for discharge. As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion. Relief denied.

A service member’s characterization of service is founded on the recognition of his 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 acceptable 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 appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. However, 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. Based on the seriousness of the offenses, coupled with the previous misconduct and retention counseling warnings of record, the Command 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 directed that the Applicant be separated for MISCONDUCT (C ivilian Conviction) and that he receive an Under Other Than Honorable Conditions characterization of his service , without recommendation for reentry into the armed services.






T he Applicant contends that his youth and immaturity w ere underlying cause s of his misconduct. The NDRB recognizes that many of our service members are young at the time they enlist for service, but most still manage to serve honorably . While we understand some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. The Applicant was 22 at the time of his enlistment ; he had already been divorce d and had a court - ordered support requirement for a dependent child from that marriage. While in service, he completed Marine Corps Recruit Training, Marine Combat Training, Field Wireman School, and the Non-Commissioned Officers Leadership Course. Additionally, the Applicant had successfully completed two combat deployments in support of Operation Iraq Freedom. At the time of his civilian conviction, the Applicant attained the rank of Corporal . In the Applicant’s specific case , the NDRB determined that the Applicant’s youth or immaturity were not mitigating factors to his deliberate and continued misconduct in spite of numerous retention counseling warnings and disciplinary efforts.

Upon review of the Applicant’s record of service, the NDRB 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. The NDRB found the characterization of the Applicant ’ s discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the narrative reason for discharge or the characterization of the A pplicant’s service at discharge. The NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief is not warranted. 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 NDRB determined that 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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