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USMC | DRB | 2011_Marine | MD1100162
Original file (MD1100162.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101026
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)       20070323 - 20070513     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070514     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090731      H ighest Rank:
Length of Service : Y ea rs M on ths 16 D a ys
Education Level: 12      AFQT: 47
MOS: 0481
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX SSDR ICM (w/ 1 bronze service star) GWOTSM NDSM

Periods of UA / CONF : UA/I n Hands of Civil Authorities 20090516 - 2009 0517 (2 days )

NJP: 1

- 20090720 :      Article 92 (Failure to obey order or regulation, a military protection order , 2009060 6 and 20090607 )
         Article 128 (Assault, 3 specifications )
                  Specification 1: Unlawfully choke his wife on the neck with his hands , 20090607 )
                  Specification 2: Unlawfully choke his wife on the neck with his hands , 20090607 )
                  Specification 3: Unlawfully strike his wife in the face with his fist , 20090607 )
         Awarded: RIR (to E-3) FOP RESTR Suspended:

SCM: NONE        SPCM: NONE        CC: NONE          Retention Warning Counseling : NONE
Administrative Corrections to the Applicant’s DD 214

 The NDRB noted an administrative er ror on the original DD Form 214:

          Block 13, Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized, should read: “RIFLE EXPERT BADGE, SEA SERVICE DEPLOYMENT RIBBON, IRAQ CAMPAIGN MEDAL (W/ 1 BRONZE SERVICE STAR) , GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, MERITORIOUS MAST”
 “ 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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, Paragraph 6210, MISCONDUCT.

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 92 and 128.



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Applicant contends a mental condition affected his ability to comprehend the ramifications of administrative separation.
2.       Applicant contends his discharge was inequitable, because it was based on an isolated incident in 2 years of otherwise honorable service .

Decision

 Date: 20 1 2 01 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 identified two decisional issues for the Board’s consideration. The Applicant’s record of service included one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, failed to obey a n 18 May 2009 military protection order , 6 Jun and 7 Jun 2009 ) and Article 128 (Assault, 3 specifications : u nlawfully choke his wife on her neck with his hands , 7 Jun 2009 , and u nlawfull y strike his wife in the face with his fist , 7 Jun 2009 ). The record also revealed a two-day period (16-17 May 2009) of UA while in the hands of civil authorities. On 23 Jun 2009, the Applicant’s command preferred charges against him for trial by Special Court - Martial. On 7 Jul 2009, the Applicant, after consulting with qualified counsel, submitted a request for a pre-trial agreement (PTA) in which he would agree to plead guilty to the offenses for which he was charged (at Battalion CO’s NJP or Summary Court - Martial) in return for avoiding trial by Special Court-Martial and a possible punitive discharge (Bad Conduct Discharge) . The Special Court-Martial Convening Authority accepted the PTA and signed it on 17 Jul 2009 , which then led to Battalion Commander’s NJP proceedings on 20 Jul 2009 . B ased on the serious offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the procedure on 21 Jul 2009 , the Applicant exercised his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative separation board (part of the pre-trial agreement) . The Applicant was separated from the Marine Corps on 31 Jul 2009 with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).

: (Decisional) ( ) . The Applicant contends that a mental condition affected his ability to comprehend the ramifications of administrative separation. The Board conducted an exhaustive review of the records and found no evidence to support, nor did the Applicant provide any evidence to indicate , that he attempted to u s e the numerous services available for service members who undergo personal problems during their enlistment , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. Additionally, a review of the records found no indication of documented mental health issues or a diagnosis identifying the Applicant as not mentally competent and/or not responsible for his actions. Further, he was provided, and met with, qualified legal counsel before submitting a pre-trial agreement and in his final acceptance of his punishment and discharge. After careful consideration, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable, because it was based on an isolated incident in 2 years of otherwise honorable service. Despite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the N aval S ervice in order to maintain proper order and discipline. Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or nonjudicial punishment. The characterization of service is a description of the total service provided during the member’s enlistment. A General (Under Honorable Conditions) d ischarge is warranted when significant negative aspects of a member’s conduct or

performance of duty outweigh the positive aspects of the member’s military record. However, an Under Other Than Honorable Conditions discharge 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 Applicant’s service contained multiple violations of UCMJ Articles 92 and 128 , which constitute the “commission of a serious offense . ” These specific violation s are punishable by a B ad C onduct D ischarge and up to 6 months imprisonment if adjudicated at trial by court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, especially one of his grade and length of service, and f alls short of w hat is required for an upgrade in the characterization of service. Relie f 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 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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