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USMC | DRB | 2011_Marine | MD1100119
Original file (MD1100119.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     19950215 - 19950626     Active:   R 19950627 - 19951209 (IADT) ( HON )
         USMCR    19951210 - 19960324              USMCR    19960325 - 19960622 (ADSW) ( HON )
         USMCR    19960623 - 19961031              USMCR    19961101 - 19970429 (ADSW) ( HON )
         USMCR    19970430 - 19970827 COG            USMC     1997 0828 - 20011012 ( HON )
                                    USMC     20011013 - 20051003 ( HON )
                                    USMC     20051004 - 20070521 ( HON )
Period of Service Under Review:
Date of Current Enlistment: 20070522     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090429      H ighest Rank:
Length of Service : Y ea rs M on ths 08 D a ys
Education Level:        AFQT: 36
MOS: 0351 / 6046 / 8151 / 0916
Fitness R eports: and reviewed

Awards and Decorations ( per DD 214):      Rifle SS , Pistol MM , GCM (3) , NMCAM (3 , ) SSDR (5) , GWOTSM , OSR (4) , NDSM , MSGR , NASR , MUC (3) , C O C (4) , LOA (12) , COA (6) , MM (4)
Periods of UA / CONF :

NJP: NONE        SCM: NONE        SPCM: NONE       CC: NONE         Retention Warning Counseling : NONE

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative er ror s on the original DD Form 214:
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 970430 UNTIL 07052 1 ”
         “ MARCORSEPMAN 6419 ”

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: (1) The Applicant contends his characterization of service at discharge was inequitable; his misconduct was a minor and isolated personal indiscretion, which was exacerbated by inflammatory charges that were referred to trial by General Court - Martial but dismissed upon completion of the Article 32 investigation. (2) The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwis e outstanding military career.

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 two decisional issues regarding the equity of his discharge; additionally, the NDRB completed a thorough review of the circumstances leading to the discharge, and the discharge process, to ensure the Applicant’s discharge met the pertinent standards of both equity and propriety.

The Applicant entered military service on an 8-year reservist contract with out any moral or criminal misconduct waiver s. He enlisted under a guarantee of Infantry Option and was trained as an Assaultman. The Applicant successfully completed recruit training and his MOS school and was discharged honorably from the Active Duty component for further assignment with his designated Selected Marine Corps Reserve u nit. While assigned to the reserve unit and maintaining a satisfactory drilling status, the Applicant volunteered for and honorably completed two active duty periods of service. On 28 August 1997, the Applicant requested to augment to active duty; he was accepted and was re-trained in a new military occupational specialty as an aviation maintenance administration specialist . He honorably completed three active duty enlistments and , each time, executed immediate reenlist ments . The Applicant’s current enlistment period in question commenced on 22 May 2007. The Applicant’s service record documents that in January 2008, while stationed overseas in Okinawa , Japan, charges were preferred against him for trial by a General Court - Martial , alleging the Applicant had violat ed Article 120 (Rape) of the Uniform Code of Military Justice (UCMJ). The Applicant was placed on legal hold and an Article 32 Investigation was convened. In November 2008, the Article 32 Investigation determined that the alleged charge of violating Article 120 was baseless . Based on the findings of the Article 32 Investigation, the charge of rape was withdrawn and charges of violating Article 92 ( F ailure to obey order or regulation) and Article 134 (Adultery) were subsequently referred for trial by a Special Court - Martial. During the course of the Article 32 Investigation, the Applicant openly admitted to having engaged in an inappropriate sexual relationship with a junior Marine, not his wife, while defending himself against the allegation of rape. Now facing charges in a trial by Special Court - Martial, which he had admitted to violating - in writing - to the Naval Criminal Investigati ve Service in defense of the Rape charge, the Applicant exercised his right to request Administrative Separation in Lieu of Trial.

(Decisional Issue s ) ( ) PARTIAL . ( 1) The Applicant contends his misconduct was a minor and isolated personal indiscretion, which was exacerbated by inflammatory charges that were referred to trial by General Court - Martial but dismissed upon completion of the Article 32 I nv estigation. (2) The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career.

(Propriety) In order to warrant separation in lieu of trial by court - martial, the Applicant requested separation - in writing - for the good of the service to escape charges that had been preferred against the A pplicant and referred to trial by a Special Court-Martial. The Applicant submitted his request for separation in lieu of trial on 06 March 2009; it was approved by the Separation Authority on 17 March 2009. The request for separation contained certain basic requirements - which must be satisfied - before receiving approval by the Separation Authority. 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. The Applicant was represented by an appropriately credentialed legal defense counsel throughout the process. The request for separation satisfied all the elements established by the MARCORSEPMAN; as such, the command accepted the Applicant’s request. The Applicant was separated properly from the naval service in accordance with chapter 6419 of the M arine Corps Separation and Retirement Manual . Accordingly, relief based on propriety is not warranted.
( Equity) The Applicant contends his misconduct was an isolated incident in what was an otherwise outstanding military career. Further, t he Applicant contends his misconduct was a minor and isolated personal indiscretion, which was exacerbated by inflammatory charges that were referred to trial by General Court - Martial but dismissed upo n completion of the Article 32 I nvestigation. Despite a servicemember’s prior record of service , certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and dis cipline. Violation of Article 92 and 134 are such offense s , providing for a punitive discharge (Bad Conduct Discharge/Dishonorable Discharge) if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. In the Applicant’s case, the command opted to pursue the punitive discharge; facing the possibility of a punitive discharge and record of a felony offense, the Applicant requested administrative separation in lieu o f trial.

The characterization of service at discharge is recognition of a Marine’s performance and conduct throughout the current period of enlistment and is not necessarily dependent upon the narrative reason for separation. Prior to the current enlistment period under review, the Applicant had successfully completed three active duty enlistment periods - honorably; however, each period of enlistment is an independent obligation and characterization is determined for that specific period of time . 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. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. 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.

The Applicant’s service record is a testament to long and faithful service to the Corps; however, his misconduct of record is that - misconduct - and, given the Applicant’s rank, billet, and leadership role, could not be condoned. Conversely, the NDRB also determine d that the command climate and environment, coupled with the initial, unsubstantiated allegation s , did likely have an influence on the decision making process in this specific and unique case . After a careful review of the Applicant ’ s documentation and official service record, coupled with the facts and circumstances unique to this case, the NDRB determined that partial relief is warranted based on equitable grounds. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, but that a General (Under Honorable Conditions) discharge is appropriate and was warranted. Partial r elief warranted . Full relief to Honorable and a change to the Narrative Reason for Separation were not granted due to the seriousness of the misconduct and because the referral of charges to a Special Court-Martial was proper and equitable .

S ummary : 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 , however, 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 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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