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USMC | DRB | 2011_Marine | MD1100209
Original file (MD1100209.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101102
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Entry Level Separation

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19980326 - 19980517     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980518     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19981103      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 52
MOS: 9971
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:      Retention Warning Counseling :

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

 1.       The Applicant seeks a change to his characterization of service at discharge to “Uncharacterized,” contending that he was still in an entry-level status of less than 180 days of active service .
2.       Post-service conduct.

Decision

Date: 20120313            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 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 standards of both equity and propriety. The Applicant’s record of service included no Marine Corps Separation and Retirement Manual (MARCORSEPMAN) paragraph 6105 retention-counseling warnings and no judicial or non-judicial proceedings. However, the Applicant’s service record reflects referral of charges to trial by S pecial C ourt -M artial for violation of the Uniform Code of Military Justice (UCMJ) , specifically, violation of Article 90 (Willfully disobeying lawful order of superior commissioned officer) and violation of Article 91 (2 specifications - Insubordinate conduct toward noncommissioned officer and staff noncommissioned officer through willful disobedience). The Applicant’s military record 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 the A pplicant and referred to trial by a Special Court-Martial or above. The Applicant had two separate charges preferred against him for trial by Special Court - Martial. The Applicant consult ed with a qualified defense counsel and submitted his request for separation in lieu of trial to the S eparation A uthority . The request for separation contained certain basic requirements - which are required to 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 exercised . 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 Ot her Than Honorable Conditions.

Issue 1: (Decisional) ( ) . The Applicant seeks a change to his characterization of service at discharge to “Uncharacterized,” contending that he was still in an entry-level status of less than 180 days of active service . Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Nav al Service in order to maintain good order and discipline. The Applicant’s service record reflects that he willingly and knowingly refused the direct orders of his chain of command while at his military occupational specialty formal training school. The record further documents that the Applicant was afforded numerous opportunities to reflect on his misconduct and reconsider his actions, to include the command personally contacting the Applicant’s parents ; he failed to take advantage of these opportunities. Violation of Article 90 and Article 91 are considered serious offense s under the UCMJ , warranting punitive discharge and confinement for up to 5 years if adjudged at trial by S pecial or G eneral C ourt -M artial. The Applicant’s command determined that his conduct was detrimental to the good order and discipline of the service and determined that the misconduct warranted punitive action via trial by court - martial. Facing the punitive action of a court - martial, the Applicant requested administrative discharge from the service , fully aware of the likely characterization of his service and the narrative reason for his discharge that would be on his DD Form 214.




By regulation, service members notified of intended recommendation for discharge within the first 180 days of their enlistment are eligible for an Uncharacterized or Entry-Level Separation characterization of service . U nless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit otherwise, an U ncharacterized discharge is generally considered the most appropriate characterization of a member’s service. An Under Other Than Honorable Conditions discharge characterization , 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. In the Applicant ’s specific case, the misconduct of record included serious offenses under the UCMJ, punishable by punitive discharge and confinement in excess of a year . T he Applicant requested administrative discharge in lieu of facing possible confinement and a punitive Bad Conduct Discharge ; accordingly, a n Under Other Than Honorable Conditions characterization of service was the most appropriate characterization , given the serious nature of the offenses. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, did reflect act s or omission s that constituted a significant departure from the conduct expected of a service member and the awarded characterization of service upon discharge was both equitable and consistent with the characterization of discharge given others in similar circumstances. The Applicant’s characterization of service at discharge was appropriate. Accordingly, relief is denied.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB considers 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. The Applicant provided college transcripts, letters of recommendation, a credit score, and a resume. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the UCMJ violation. Relief 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 her 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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