Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1100286
Original file (MD1100286.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101110
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)       20010711 - 20011202     Active:   20011203 - 20051001 HON

Period of Service Under Review:
Date of Current Enlistment: 20051002     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100211      H ighest Rank:
Length of Service : Y ea rs M on ths 11 D a ys
Education Level:        AFQT: 95
MOS: 0331
Proficiency/Conduct M arks (# of occasions): 4.4 / 4.4    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX (2) Pistol SS GCM (2) SSDR (3) ICM (w/ 1 campaign star) NDSM GWOTSM MUC LOC

Periods of UA / CONF :

NJP: 1

- 20100108 :      Article 92 (Failure to obey order or regulation, sexual harassment, making deliberate or repeated unwelcome verbal comments of a sexual nature to two SOFA status dependent while on board a military installation , 2 specifications )
         Article 128 (Assault , unlawfully touch a SOFA status dependent on her leg with his hand )
         Awarded: RIR FOP Suspended: FOP

SCM: NONE        SPCM: NONE       CC: NONE

Retention Warning Counseling : 1

- 20100108 :       For failure to obey order or regulation, assault, and disorderly conduct

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 :        


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

Applicant’s Issues

1.       The Applicant contends his rec ord of service warrants an H onorable discharge.
2.       The Applicant contends his command acted illegally by violating a pre-trial agreement (PTA) and the Marine Corps Separation and Retirement Manual ( MARCORSEPMAN ) to process his discharge.

Decision

Date: 20 1 2 0206            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’s record of service included one 6105 counseling warning and one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, sexual harassment, making deliberate or repeated unwelcome verbal comments of a sexual nature to two SOFA status dependent s while on board a military installation, 2 specifications) and Article 128 (Assault, unlawfully touch a SOFA status dependent on her leg with his hand) . The Applicant submitted a PTA to accept non-judicial punishment and waive his right to an administrative board for the charges and specifications provided . T he C onvening A uthority agreed to withdraw and dismiss the charges and specifications from S pecial C ourt- M artial. Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel and submit a written statement, but waived his right to request a n administrative board in accordance with his PTA .

: (Decisional) ( ) . The Applicant contends his record of service warrants an H onorable discharge. C ertain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article s 92 and 128 are offense s that warrant processing for administrative separation regardless of performance, grade , or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive di scharge but opted instead for the more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate . Relief denied.

: (Decisional) ( ) . The Applicant contends his command acted illegally by violating a PTA and the MARCORSEPMAN to process his discharge. The Applicant’s main contention is that his command improperly held him past his end of obligated active service (EAS) in order to administratively separate him. The Applicant was held past his EAS for the purpose of being tried at a S pecial C ourt- M artial. Per paragraph 1008. 1.b.(1) of the MARCORSEPMAN, this was proper: “Those personnel to whom jurisdiction has attached by commencement of action with a view to trial, as by apprehension, arrest, confinement, or filing of charges, before release from active duty, may be retained on active duty. Once jurisdiction has been so attached, it continues for purposes of trial, sentence, and punishment.” Once the Applicant agreed to NJP per the PTA, he contends he should have been separated for completion of required active service. The Applicant is mistaken in his contention. MARCORSEPMAN paragraph 1008 .2.b states that “Marines undergoing administrative separation processing will not be involuntarily retained on active duty past their release date. However , Marines involuntarily retained on active duty pursuant to paragraph 1008.1.b.(1) above, may be administratively separated pursuant to their own request in lieu of trial by court-martial, or pursuant to a negotiated pre-trial agreement at a court-martial. In either case, said request or agreement by the Marine must be made with the assistance of counsel. ” Once the Marine Corps and Applicant agreed to the PTA, the Marine Corps initiated separation proceedings that properly and equitably led to an Under Other Than Honorable Conditions characterization of service. The NDRB also found on impropriety or inequity with any of the other issues raised by the Applicant surrounding the separation proceedings. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall . 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, Automatic Upgrades, and Post-Service Conduct .

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 .

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.


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

Similar Decisions

  • USMC | DRB | 2012_Marine | MD1201068

    Original file (MD1201068.rtf) Auto-classification: Denied

    Clemency denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge 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. ” Additional Reviews : After a document review has been conducted, former members...

  • USMC | DRB | 2010_Marine | MD1001819

    Original file (MD1001819.rtf) Auto-classification: Denied

    The command opted to prefer the new charges of misconduct to trial by special court-martial.The stated misconduct resulted in the special court-martial awarding a punitive Bad Conduct Dischargeand confinement for 6 months.The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment honorably. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record...

  • USMC | DRB | 2015_Marine | MD1401672

    Original file (MD1401672.rtf) Auto-classification: Denied

    Based on the offense(s) committed by the Applicant, and after a General Court-Martial Convening Authority review, the Applicant was punitively discharged from the service with a Bad Conduct Discharge. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain BAD CONDUCT DISCHARGE and the narrative reason for separation shall...

  • USMC | DRB | 2008_Marine | MD0801415

    Original file (MD0801415.rtf) Auto-classification: Denied

    The three member administrative board returned findings of misconduct by a vote of 2-1, by a vote of 3-0 that the misconduct warranted separation, and by a vote of 3-0 that the separation should be characterized as “Under Other Than Honorable ” . The Board determined an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM:...

  • USMC | DRB | 2015_Marine | MD1500124

    Original file (MD1500124.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain PERSONALITY DISORDER. ” Additional Reviews : After a document...

  • USMC | DRB | 2011_Marine | MD1100162

    Original file (MD1100162.rtf) Auto-classification: Denied

    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 remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted,...

  • USMC | DRB | 2011_Marine | MD1100292

    Original file (MD1100292.rtf) Auto-classification: Denied

    The Secretary of the Navy Clemency and Parole Board reviewed the results of the Applicant’s court-martial and determined that clemency was not warranted. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, post service documents, the record of trial by Special Court-Martial, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE and the narrative...

  • USMC | DRB | 2015_Marine | MD1500008

    Original file (MD1500008.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received...

  • USMC | DRB | 2007_Marine | MD0700297

    Original file (MD0700297.rtf) Auto-classification: Denied

    After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.In reviewing discharges, the Board 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. After a...

  • USMC | DRB | 2013_Marine | MD1300795

    Original file (MD1300795.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 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...