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USMC | DRB | 2010_Marine | MD1002025
Original file (MD1002025.rtf) Auto-classification: Denied

ex-CWO2, USMC
Current Discharge and Applicant’s Request
Application Received: 20100810
Characterization of Service Received:
Narrative Reason for Discharge: SUFFICIENT SERVICE FOR RETIREMENT
Authority for Discharge: SECNAVINST 1920.6C

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19880129 - 19881130     Active:            19881201 - 19951024
                                             19951025 - 19981101
                                             19981102 - 20011204
                                             20011205 - 20030202 HON to accept WO
Period of Service Under Review:
Date of Appointment : 20030203    Age at Enlistment:
Years Contracted : Indefinite
Date of Discharge: 20091031      H ighest Rank: CWO3
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 71
MOS: 3451 / 3408
Officer’s Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) Pistol (2) JSCM (2) (2) (4) (2) (5) (4) MM CoA LoA

Periods of UA :

NJP:     SCM:     SPCM:

G CM:

- 20081223 :       Art icle (Assault, 2 specifications )
         Specification 1: Unlawfully strike a child under the age of 16 years, on the head and shoulder repeatedly with a closed fist
         Specification 2: Commit an assault upon a child under the age of 16 years, by striking her on the head with a means likely to produce death or grievous bodily harm, to wit: a metal frying pan
         Sentence : 20 MONTHS (20081028-20090923, 331 days) and dismissed from service
         CA Action: The sentence to confinement is approved and so much of the sentence extending to a dismissal is changed to confinement for eleven months (thereby making the total period of confinement to be served without suspension as twenty (20) months [9 months from pretrial agreement limitation plus 11 months from change of dismissal to confinement]). The sentence as changed is approved and will be executed.
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:

         Block 4a, Grade, Rate or Rank, should read: “ CWO2 ”
         Block 4b, Pay Grade, should read “ W2 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ SECNAVINST 1920.6C ”

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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar ch 19 97.

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 .



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

Applicant’s Issues

 1.        The Applicant contends there is no basis in statute or regulation for him to have been retired with an OTH.
2.       The Applicant contends that since he was retired as a CWO2 due to that being the last grade in which he served satisfactorily, the charact erization should be Honorable.

Decision

Date : 2011 1205             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SUFFICIENT SERVICE FOR RETIREMENT .

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 discharg e if such change is warranted. In reviewing discharges, the Board 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. R elevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s record of service included General C ourt- M artial for o f the Uniform Code of Military Justice (UCMJ): Article ( , ). Based on the Applicant’s conviction at G eneral C ourt- M artial, command approved his request to retire for cause. The Applicant’s sentence at court-martial was changed to increase confinement and to not execute dismissal per the original sentence. Following confinement, the Applicant retired at the lesser grade of CWO2 with an Under Other Than Honorable Conditions characterization of service.

: (Decisional) ( ) . The Applicant contends there is no basis in statute or regulation for him to have been retired with an OTH. The Applicant’s issue is without merit. This case was reviewed and found to be sufficient in law and fact. Additionally, the Applicant’s command was unusually lenient in its attempts to avoid dismissal, the most punitive characterization for an officer, as sentenced at court-martial. The Applicant was properly notified that he may receive an Under Other Than Honorable Conditions characterization and agreed in a post-trial agreement to increased confinement, potential OTH, and retirement grade as determined by the Secretary of the Navy. The NDRB determined an u pgrade would be inappropriate.

: (Decisional) ( ) . The Applicant contends since he was retired as a CWO2 due to that being the last grade in which he served satisfactorily, the characterization should be Honorable. The Applicant’s contention is without merit. As explained in issue one, the Applicant is exceedingly fortunate his command changed his original sentence that would have included dismissal rather than an OTH characterization of service. As agreed in the post-trial agreement, the Secretary of the Navy determined the grade at which the Applicant would retire , based on his entire record, which included, but was not limited to, the last grade he served honorably . He was retired at CWO2 with an OTH discharge as part of this agreement to avoid dismissal. The Applicant’s command handled his retirement in a most equitable fashion in an attempt to be less punitive. The NDRB found no reason for further leniency. An u pgrade would be inappropriate.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain SUFFICIENT SERVICE FOR RETIREMENT . 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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