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USMC | DRB | 2011_Marine | MD1100148
Original file (MD1100148.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101022
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)       20050919 - 20060604     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060605     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080507      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 3 D a y ( s )
Education Level:        AFQT: 86
MOS: 7041
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoA LoA

Periods of UA /CONF:      UA (I n Hands of Civil Authorities ) : 20070530 - 20070919 (112 days)       CONF :

NJP:
- 20070924 :      Article ( SNM was the driver for 3 other Marines conduct ing armed robbery of individual on street)
         Awarded: (to E-2) Suspended: RESTR (suspend 6 months)

SCM:              SPCM:             Retention Warning Counseling :

CC:
- 20070 920 :       Offense: 2n d Degree Armed Robbery
         Sentence : Three years of probation

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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 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 improper/inequitable, as it was based on a civil court guilty finding that resulted from a plea bargain.
 2.       Applicant contends his pos t-service achievements warrant consideration for a discharge upgrade.

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 two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service did reflect nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 134 ( General Article, acted as driver for three other Marines conducting an armed robbery of an individual on the street ) and one civil conviction for Second Degree Armed Robbery (Los Angeles CA, 20 Sep 2007) . Based on the offense committed by the Applicant, his command administratively processed him for separation (civil conviction and commission of a serious offense) . When notified of a dministrative separation processing using the procedure on 1 Oct 2007 (for civil conviction) and again on 10 Mar 2008 (civil conviction and commission of a serious offense) , the Applicant elected to exercise rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The Administrative Board proceeding was conducted on 14 Mar 2008 and reported the following findings to the Applicant’s Commanding Officer: by a majority vote , the Applicant committed misconduct; by a majority vote , the Applicant should be separated from the Marine Corps without suspension of separation; and by majority vote , the Applicant should receive a General (Under Honorable Conditions) discharge. On 9 Apr 2008, the Separation Authority, after considering all the facts and circumstances surrounding the Applicant’s case, directed that he be administratively separated from the Marine Corps as recommended by the Admin Board. The Applicant was separated from the Marine Corps on 7 May 2008 with a General (Under Honorable Conditions) discharge due to Misconduct (Commission of a Serious Offense).

: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable, as it was based on a civil court guilty finding that resulted from a plea bargain. In reviewing discharges, the Board 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. After a detailed examination of the records, the Board determined that the Applicant , al though most likely unaware of the intentions/actions of his friends at the time of the armed robbery, was made aware of the crime shortly after it was committed . The Board could find no evidence within the record to indicate the Applicant made any attempts to rectify the situation once he was aware of the felony crime committed by his friends. Not until questioned by the Los Angeles Police, during the initial investigation, did he assist by giving his full cooperation. Although he did not conspire to commit nor have any involvement in the felony , once he was aware the crime was committed , he had the moral obligation to report the offense to his chain of command. With regards to civil court proceedings, r elevant and material facts and resultant findings from civil court are presumed by the NDRB to be established facts. Although the Applicant contends that a combination of substandard legal counsel and a “take it or leave it” plea bargain from the District Attorney forced him into a “ no-win ” position to plead guilty (to avoid felony prosecution and harsh punishment), the Board could find no evidence, nor did the Applicant submit any evidence on his behalf, to support this contention. T he Board , after careful analysis of the available evidence, f ound the discharge to be proper , equitable, and in accordance with the orders and directives in effect at the time of his separation. Relief denied.


: (Decisional) ( ) . The Applicant contends his po s t-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’ s character or an aberration. However, there is no law or regulation, that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided a personal statement and several letters of character reference . Unfortunately, his efforts needed to have been more encompassing. He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion of these items alone does not guarantee an upgrade from a n unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions ) . 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 process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is strongly encouraged and 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

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