Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1100066
Original file (MD1100066.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101013 
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)       20010126 - 20010311     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010312     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040715      H ighest Rank:
Length of Service : Y ea rs M on ths 04 D a ys
Education Level:        AFQT: 51
MOS: 3451
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM NDSM

Periods of UA / CONF :

NJP:

- 20030317:      Article 80 (Attempts, attempt to commit sexual assault upon a P rivate F irst C lass by kissing, grabbing, and placing his hand between her legs)
         Article 134 (Indecent assault upon a P rivate F irst C lass by kissing, grabbing, and placing his hand between her legs with intent to gratify his sexual desires)
          Awarded: FOP RESTR EPD Suspended: FOP
- 20031028 :      Article 107 (False official statement, denied the sexual assault occurred to a F irst S ergeant)
         Article 134.63 (Indecent assault upon a L ance C orporal by rubbing her hand on his penis with intent to gratify his sexual desires)
         Awarded: RIR FOP RESTR EPD Suspended:

SCM: NONE        SPCM: NONE        CC: NONE

Retention Warning Counseling : 2

- 20020123 :       For alcohol - related incident , DWI with BAC of 0.08.

- 20020201 :       For disrespect toward an NCO, disobeying a lawful order from an NCO, and reckless behavior while consuming alcohol






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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

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 107 and 134.



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

Applicant’s Issues
1.       The Applicant seeks a change in his RE code.
2.       The Applicant seeks an upgrade for employment opportunities.
3.       The Applicant contends his non-judicial punishments (NJP) were unjustified .

Decision
Date: 20 1 2 0112            Location: Washington D.C .         R epresentation : none

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’s record of service included two 6105 counseling warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempts, attempt to commit sexual assault upon a PFC by kissing, grabbing, and placing his hand between her legs) , Article 107 (False official statement, denied the sexual assault occurred to a F irst S ergeant) , and Article 134 ( General A rticle, 2 specifications [Specification 1: Indecent assault upon a PFC by kissing, grabbing, and placing his hand between her legs with inten t to gratify his sexual desires] and [Specification 2: Indecent assault upon a LCPL by rubbing her hand on his penis with inten t to gratify his sexual desires]). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing , the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The a dministrative b oard voted unanimously that the Applicant be separated from the Marine Corps due to a pattern of misconduct and commission of a serious offense with an U nder O ther T han H onorable C onditions characterization of service .

: (Nondecisional) The Applicant seeks a change in his 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 B oard for Correction of Naval Records 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.
: (Nondecisional) The Applicant seeks an upgrade for employment 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.
: (Decisional) ( ) . The Applicant contends his NJP s were unjustified. The Applicant submitted no documentation or evidence to support his issue. The record clearly shows the Applicant repeatedly engaged in serious misconduct that could have resulted in confinement and a punitive discharge if adjudicated at special court-martial. After the incidents of misconduct, the Applicant’s command decided to initiate separation proceedings based upon an established pattern of misconduct and commission of a serious offense. Administrative separation is a distinct and separate action than the punishment imposed at NJP. The administrative separation board, which the Applicant requested, was convened to recommend whether the Applicant should be retained in the Marine Corps. The board determined that the misconduct did occur and further recommended that the Applicant should be separated from the Marine Corps. The Applicant’s contention that other Marines had four NJPs and received an Honorable discharge is irrelevant to his case. Each Marine’s service must stand on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment. The Applicant’s command was lenient in opting to pursue administrative separation. 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’s incidents of misconduct clearly warrant an Under Other Than Honorable Conditions characterization of service. R elief denied.

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 . 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

Similar Decisions

  • NAVY | DRB | 2005_Navy | ND0500532

    Original file (ND0500532.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Board also found the Applicant’s Commanding Officer’s consideration of the Applicant’s court-martial conviction when recommending the Applicant’s discharge characterization to be proper an in accordance with regulations. The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

  • NAVY | DRB | 2008_Navy | ND0801610

    Original file (ND0801610.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise...

  • NAVY | DRB | 2003_Navy | ND03-01391

    Original file (ND03-01391.rtf) Auto-classification: Denied

    ND03-01391 Applicant’s Request The application for discharge review was received on 20030820. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

  • USMC | DRB | 2009_Marine | MD0901778

    Original file (MD0901778.rtf) Auto-classification: Denied

    There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6” (Issues: Why an upgrade or change is requested and justification for the request). ” Additional Reviews : After a...

  • NAVY | DRB | 2004_Navy | ND04-01157

    Original file (ND04-01157.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. ” Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 920826 - 920830 COG Active: None Period of Service Under Review :Date of Enlistment: 920831 Date of...

  • NAVY | DRB | 2009_Navy | ND0901806

    Original file (ND0901806.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB)DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2006_Marine | MD0600198

    Original file (MD0600198.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). 980305: SJA review determined the case sufficient in law and fact.980306: GCMCA, Commanding General, MCRD/WRR San Diego,approved the Applicant's request for discharge and directed his discharge under other than honorable conditions by reason of separation in lieu of trial by court-martial. You may view DoD Directive 1332.28 and other...

  • NAVY | DRB | 1999_Navy | ND99-00686

    Original file (ND99-00686.rtf) Auto-classification: Denied

    ND99-00686 Applicant’s Request The application for discharge review, received 990427, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a documentary record discharge review. Specification 3: In that HN D_ L. E_ did, at the Naval Hospital Pensacola, Florida, on or about April 1995, commit an indecent assault upon K_ R. G_ a person not his wife, by sliding his hands up and down her leg, with the intent to gratify his lust or...

  • NAVY | DRB | 2005_Navy | ND0500823

    Original file (ND0500823.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. For the good of the Naval Service I recommend that he be discharged with a characterization of service of Under Other Than Honorable.”030113: Commander, Naval Surface Group TWO authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. You may view DoD Directive 1332.28 and other Decisional...

  • ARMY | BCMR | CY2001 | 2001064786C070421

    Original file (2001064786C070421.rtf) Auto-classification: Denied

    Because of his conviction, the applicant could not reenlist without a waiver approved by PERSCOM. Pertinent Army regulations state that the authority to grant a waiver of a court-martial conviction disqualification for enlistment rests with PERSCOM. The evidence shows that he was sufficiently informed to know that he required a waiver to reenlist, and that he had the option of requesting relief from his conviction under Article 69(b), UCMJ.