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USMC | DRB | 2011_Marine | MD1100116
Original file (MD1100116.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101019
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)       19930114 - 19930119     Active:   19930120 - 19961109 HON

Period of Service Under Review:
Date of Current Enlistment: 199 61110     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980424      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 14 D a y ( s )
Education Level:        AFQT: 64
MOS: 1161 / 8511
Fitness R eports: and reviewed

Awards and Decorations ( per DD 214):      Rifle (2) , Pistol , , , NAM , , LoA

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 930120 UNTIL 961109 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ IN LIEU OF TRIAL BY COURT MARTIAL ”
        
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 P1900.16E), effective 18 August 1995 until 31 August 2001.

 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 contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in 28 months of service with no other adverse actions .

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 identified one decisional issue related to the equity of the discharge for the NDRB’s consideration; additionally, the NDRB conducted 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 both equity and propriety.

The Applicant entered military service at age 18 on a four year enlistment on an Open C ontract and was subsequently trained in the military occupational specialty of Refrigeration Mechanic . The Applicant’s enlistment record reflects his entry into military service without any waivers to enlistment and induction standards. At the time of discharge, t he Applicant was serving on his second enlistment with the Marine Corps, having completed honorably one 4-year enlistment contract, which ended on 09 November 1996 . He immediately reenlisted for a second four-year enlistment period that commenced on 10 November 19 96 . The Applicant’s record of service during included no paragraph 6105 retention-counseling warnings. Additionally, d uring the Applicant’s current enlistment period, the service record reflects that there were no non-judicial punishment (NJP) proceedings. However, on 26 N ovember 1997, the General Court- Martial Convening Authority (GCMCA) preferred charges against the Applicant for trial by General Court- Martial for alleged violation of the Uniform Code of Military Justice (UCMJ) . Specifically, the Applicant was charged with violation of Article 120 ( Rape), Article 125 (Sodomy - by force and without consent), Article 134 (2 specifications): S pecification 1 - F orceful indecent sexual assault and S pecification 2 - Adultery. On 09 March 1998, by directio n of the GCMCA, a General Court- Martial was ordered convened to try the Applicant’s case. On 03 April 199 8 , the Applicant, in consultation with his appointed military defense counsel, requested administrative separation in lieu of trial by court - martial. In this request, the Applicant admitted his guilt to violation of Article 134 - two specifications and requested that he be separated administratively for the good of the service. The GCMCA approved the Applican t’ s request on 10 April 1998 and he was subsequently discharged with an Under Other Than Honorable Conditions characterization of his service .

(Decisional Issue) ( ) . The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in 28 months of service with no other adverse actions. The NDRB conducted a detailed review of the Applicant ’ s discharge process as it relate s to either propriety or equity of the discharge. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. In reviewing discharges, the NDRB 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. The NDRB reviewed all of the available records, supporting documents, facts, elements of discharge, evidence submitted by the Applicant, and circumstances unique to this case.

Propriety - The Applicant’s military service record (microfiche) contains a copy of the separation proceedings. In order to warrant separation in lieu of trial by court - martial, the Applicant must request separation - in writing- for the good of the service to escape charges that have been preferred against him for referral to trial by a Special Court-Martial or above - the service record documents that the Applicant was referred to trial by General Court - Martial. After consulting with a qualified legal defense counsel, the Applicant submitted his written request to the Separation Authority requesting separation in lieu of trial. In the 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 charges 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 service upon separation - Under Other Than Honorable Conditions. Upon review by the Staff Judge Advocate, the Applicant’s request for discharge in lieu of trial was approved; he was discharged administratively on 24 April 1998 with a characterization of service of Under Other Than Honorable Conditions and a reentry code of RE-4 (not recommended for reenlistment). Accordingly, relief based on matters of propriety is not warranted.
Equity - The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in 28 months of service with no other adverse actions. Despite a servicemember’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Naval Service to maintain proper order and discipline. Based on the serious nature of the charges, the command determined that the Applicant’s misconduct was detrimental to the good order and discipline of the service, brought discredit upon the service, and determined that the misconduct warranted punitive action via trial by court - martial. Facing the punitive actions of a court - martial, the Applicant requested administrative discharge in lieu of trial. In doing this, the Applicant acknowledge d the serious nature of the charges, admitted his guilt, and accepted the fact that the likely characterization of service at discharge would be Under Other Than Honorable Conditions.

The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their H onorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines and Sailors receive no higher characterization than is due. Characterization of service at discharge is based on the recognition of a Marine or Sailor’s performance and conduct and is not necessarily dependent upon the narrative reason for separation. As such, w hen 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. An Under Other Than Honorable Conditions discharge, however, 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 NDRB determined the Applicant’s conduct during his current enlistment period , which forms the primary basis for determining the character of his service, did reflect one or more acts or omissions that did constitute a significant departure from the conduct expected of a service member. The awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances; as such, the Applicant’s characterization of service at discharge was appropriate; an upgrade would be inappropriate. Accordingly, relief is 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 IN LIEU OF TRIAL BY COURT MARTIAL. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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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