Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1100087
Original file (MD1100087.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)       20010316 - 20010422     Active:   20010423 - 2004112 3 HON

Period of Service Under Review:
Date of Current Enlistment: 2004112 4     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081121      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 54
MOS: 2141/8411
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (w/1 star) (w/1 star) ACM (w/1 star) MUC LoA CoC

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 010423 UNTIL 041123 ”
                  “ 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . 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.       Applicant contends his discharge was inequitable , because it was b ased on an isolated incident in more than 7 years o f otherwise honorable service.
Decision

Date: 20 1 2 0 1 26            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 one decisional issue for the Board ’s consideration . Th e 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 did not include any 6105 counseling retention warnings, commanding officer nonjudicial punishment s (NJP s ), or trial s by court-martial. The record did reveal the Applicant was referred for trial by special court-martial for being UA from his recruiting duties and then disobeying an order to resume his duties as a canvassing recruiter . In the Relief for Cause N otification dated 6 Oct 2008 , the Commanding Officer (6th Marine Corps Recruiting District) stated , “(The Applicant) has refused to perform his duties as a United S tates Mar i ne Corps Recruiter. I have lost all trust and confidence in his ability to recruit or remain in independent duty. ” S ubsequent to his relief for cause from recruiting duties , the Applicant submitted a request to the Court-Martial Convening Authority requesting administrative separation in lieu of trial by court -martial (SILT) , in exchange for his plea of guilty to one or more of the offenses for which he was charged . After review of the Applicant’s record of service and the circumstances surrounding the case, the Convening Authority approved the Applicant’s SILT request and directed that he be separated with an Under Other Than Honorable Conditions discharge. The Applicant was separated from the Marine Corps on 21 Nov 2008 as directed.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable, because it was based on an isolated incident in more than 7 years of otherwise honorable service. The Applicant requested discharge for the good of the service to escape trial by court-martial and a possible felony conviction . In a SILT request , the service member is required to acknowledge that their legal rights were thoroughly explained and that they either elected or waived the right to a qualified counsel. Furthermore, the member agrees to admit a plea of “ guilt y ” to at least one charge or multiple charges ( s ) preferred against him. Lastly, he certif ies a complete understanding of the negative consequences of the actions and that the resultant characterization of service could be U nder O ther T han H onorable C onditions . The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable , particularly for disobeying an order to continue his assigned duties . An H onorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. 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 N aval S ervice. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to maintain the high standards of conduct expected of all members of the Naval Service, especially considering his billet responsibilities, grade , and length of service, and f alls short of w hat is required f or an upgrade. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation in lieu of trial 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 for additional information.


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 | 2011_Navy | ND1100702

    Original file (ND1100702.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant contends her discharge was improper.2. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service and record entries, 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...

  • NAVY | DRB | 2010_Navy | ND1000771

    Original file (ND1000771.rtf) Auto-classification: Denied

    Based on the Applicant’s service performance and recommendations from the Naval Hospital medical staff, his command processed him for administrative separation. ” 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining...

  • NAVY | DRB | 2008_Navy | ND0800985

    Original file (ND0800985.rtf) Auto-classification: Denied

    The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge. The Board determined based on the limited documentation provided a change would be inappropriate and the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate...

  • USMC | DRB | 2010_Marine | MD1000908

    Original file (MD1000908.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and separation in lieu of trial 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. ” Additional Reviews : After a document review has been conducted,...

  • NAVY | DRB | 2009_Navy | ND0900412

    Original file (ND0900412.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and issues presented 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 comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with...

  • USMC | DRB | 2008_Marine | MD0800542

    Original file (MD0800542.rtf) Auto-classification: Denied

    Therefore, the Board determined relief was not warranted.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found that Pertinent Regulation/Law A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 27 Jun 89 until 17 Aug 95.B. ” Additional Reviews : Subsequent to a document...

  • USMC | DRB | 2009_Marine | MD0902539

    Original file (MD0902539.rtf) Auto-classification: Denied

    The command further recommended that he receive a General (Under Honorable Conditions) characterization of service upon discharge. Characterization of service at discharge shall normally be Under Other ThanHonorable conditions, but characterization as General(Under HonorableConditions) may be warranted in some circumstances.The Applicant was found guilty at trial by court-martial and then, after his release from confinement, continued to have misconduct issues of the same nature as the...

  • NAVY | DRB | 2008_Navy | ND0801678

    Original file (ND0801678.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT-MARTIAL.Discussion :The Applicant contends at the time of his discharge he was informed he would get an “Under Other Than Honorable ” and it would be upgraded to “Honorable ” automatically after six months. 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...

  • NAVY | DRB | 2010_Navy | ND1000041

    Original file (ND1000041.rtf) Auto-classification: Denied

    The command and separating authority approved his request, and he was discharged accordingly. ” 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. 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...

  • NAVY | DRB | 2011_Navy | ND1101859

    Original file (ND1101859.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks a discharge upgrade to improve employment opportunities.2. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the administrative separation in lieu of trial process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for...