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USMC | DRB | 2011_Marine | MD1100108
Original file (MD1100108.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101015
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)       20060622 - 20070604     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070605     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091204      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 61
MOS: 0431
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF : 20090622 - 20090624 ( 3 days );
20090804 - 20090930 ( 58 days - Pre-Trial Confinement);
20091012 - 20091123 (43 days - Pre-Trial Confinement - however, not considered time lost due to accepting administrative separation in lieu of trial by court - martial with an adjudged finding )

NJP:

- 20090723 :       Article (Unauthorized absence, 5 specifications )
         Specification 1: Knowingly and willfully failed to show at his appointed place of duty on 20090702, and was 20 minutes late.
         Specification 2: Knowingly and willfully failed to show at his appointed place of duty on 20090714, and was 2 and a half hours late.
         Specification 3: Knowingly and willfully failed to show at his appointed place of duty on 20090715, and was 7 minutes late.
         Specification 4: Knowingly and willfully failed to show at his appointed place of duty on 20090702, and was 1 hour and 45 minutes late.
         Specification 5: Knowingly and willfully failed to show at his appointed place of duty on 20090722, and was 1 hour and half hours late.
         Article 91( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications )
         Specification 1: Did knowingly, willfully, and blatantly disrespect the DNCO of barrack 230 on 20090702
         Specification 2: Did knowingly, willfully, and blatantly disrespect the DNCO of barrack 230 on 20090715
         Awarded: Susp ended:        
         Suspension Vacated on 04 Aug 2009 due to continued misconduct


SCM:    
-200 9 1002:       Article 90 (Assaulting, willfully disobeying superior commissioned officer - willful violation of Commanding Officer’s restriction order)
         Article 91 (Insubordinate conduct toward a noncommissioned officer - willfully disobeying a Staff Noncommissioned Officer)
         Article 134 (Adultery - did wrongfully have sexual intercourse with a married women, civilian, not his wife , aboard Marine Corps installation)
         Awarded: Reduction in Rank to E-1/Private, FOP  

SPCM:    CC:

Retention Warning Counseling :
- 20090717 :       For on 20090714, you showed up two and half hours late for work at MAG-24’s MCP office.

- 20090717 :       For on 20090715, you showed up seven minutes late for restriction check-in at MAG-24’s barrack 230 quarterdeck.

- 20090717 :       For on 20090715, you disrespected the DNCO of Barrack 230.

- 20090717 :       For on 20090716, you showed up one hour and forty five minutes late for work at MAG-24’s MCP office.

- 20090717 : For on 20090702, you disrespected the DNCO of Barrack 230.

- 20090721 :       For on 20090702, you showed up twenty minutes late for restriction check-in at MAG-24’s barrack 230.

- 20091005 :       For a pattern of misconduct, specifically your Summary Court-Martial that occurred on 20091002, NJP proceeding that occurred on 20090723, and six P ag e 11 entries.

Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214:

          “ (3) 090622-090624, (58) 090804-090930 ”
        
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

 Decisional issues : The Applicant did not identify any issues related to the propriety o r equity of his discharge for consideration of the NDRB; however, the Applicant contends that his post-service conduct is worthy of the Board ’s consideration upon review.
Decision

 Date: 20 1 20209           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 did not identify any decisional issues related to the propriety or equity of the discharge, but requests that the NDRB consider his accomplishments and conduct since discharge in the review of his case. 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 stan dards of equity and propriety.

The Applicant’s enlistment record reflects entry into military service without waiver to enlistment and induction standards. He enlisted under a Logistics Option Contract agreement for 4 years of active duty military service and received training as an Embarkation Specialist. The Applicant’s record of service documents his receiving seven retention-counseling warnings, one nonjudicial punishment, and one summary court - martial for multiple violations of the Uniform Code of Military Justice (UCMJ) as documented in preceding sections . Additionally, the record of service documents that the Applicant ’s Commanding Officer referred charges against the Applicant for trial by a Special Court - Martial for alleged violation of Article 90 (Assaulting, willfully disobeying superior commissioned officer - 1 specification of willful violation of the Commanding Officer’s Military Protection Order) and Article 95 (Resisting a pprehension, fight, breach of arrest, or escape - 1 specification of flight from apprehension) . I n order to avoid the punitive effects of the trial by S pecial C ourt- M artial, the Applicant submitted a request to the Separation Authority seeking administrative separation in lieu of trial by court - martial . The Applicant’s military record contains a copy of the separation proceedings. The Applicant requested administrative separation for the good of the service in order to avoid trial by court - martial on 4 November 2009; he consulted with, and was represented by, an appropriately credentialed legal defense counsel throughout the separation process. The Separation Authority approved the Applicant’s request and directed his discharge on 23 November 20 09.

(Decisional Issues) ( ) . The Applicant did not identify any decisional issues related to the equity or propriety of the discharge action for the NDRB’s consideration; however, by submission of his request for an upgrade to his characterization of his service, he is contending that it was inequitable. Additionally, the Applicant asks that the B oard consider his post - service conduct, which he believes documents that his in-service misconduct was an aberration of his overall character.

(Propriety) The Applicant’s military record contains a copy of the separation proceedings. The Applicant requested administrative separation for the good of the service in order to avoid trial by court - martial; he consulted with, and was represented by, an appropriately credentialed legal defense counsel throughout the separation process. The request for separation contains certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority. In his request, the Applicant clearly affirmed that his rights were explained to him thoroughly - to include his right to consult with qualified counsel, which he did. Furthermore, the Applicant admitted his guilt to the charge preferred against him and further certified that he had a complete understanding of the negative consequences of his actions, the narrative reason for his separation, and the likely characterization of his service upon separation - Under Other Than Honorable Conditions. The request for separation satisfied all the elements established by the Marine Corps Separation and Retirement Manual ( MARCORSEPMAN ) ; as such, the command accepted the Applicant’s request. The NDRB determined that the Applicant was discharged properly . Relief based on propriety is not warranted.

(Equity) The Applicant’s service record documents a pattern of unauthorized absence; he received nonjudicial administrative punishment from his commander for these violations of the UCMJ and was counseled, formally and in writing, that any future misconduct could result in punitive action or administrative processing for separation. The record further documents that he was subsequently placed in pre-trial confinement and referred to trial by S pecial C ourt -M artial for multiple serious offenses. During this process, and under the advice of defense counsel, he entered into a written P re- T rial A greement (PTA) wherein he agreed to plead guilty to the specified charges and waive his right to an administrative board hearing if administratively processed for separation. In return, the convening authority agreed to withdraw the charges from a punitive trial and adjudicate them at an administrative summary court- martial. The command accepted the PTA and the A pplicant was found guilty at Summary Court - Martial on 2 October 2009. He was released from confinement and returned to his unit. On 12 October, the Applicant was returned to pre-trial confinement, pending trial by S pecial C ourt -M artial for continued violations of the UCMJ. Facing the punitive effects of a trial by S pecial C ourt- M artial, the Applicant submitted a request to the Separation Authority seeking administrative discharge in lieu of trial by court - martial.

The Applicant contends his post-service conduct warrants consideration for an upgrade to an Honorable characterization of his service. The NDRB considers 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. Besides the Applicant’s statement on the DD Form 293, he provided multiple letters of character reference and verification of his lack of any criminal record since discharge. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to overcome the misconduct of record and form a basis of relief.

Characterization of service at discharge is recognition of a Marine’s performance and conduct throughout a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. However, an Under Other Than Honorable Conditions characterization of service 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 S ervice. Given the facts of the record and the information provided by the Applicant, the NDRB determined that the Applicant’s conduct - which forms the primary basis for determining the characterization service - reflected one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service and did bring discredit upon the Marine Corps . The NDRB further determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and remains consistent with the characterization of discharge given others in similar circumstances. As such, the NDRB determined that the Applicant’s characterization of service at discharge was appropriate; an upgrade or change would be inappropriate. Accordingly, relief, as requested, is denied .

Summary: After a thorough review of the available evidence, to include the Applicant’s submitted documentation, his summary of service, record entries, and discharge process, the NDRB 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 his 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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