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USMC | DRB | 2011_Marine | MD1100425

Original file (MD1100425.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101213

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)       20021212 - 20030518     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030519     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061219      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 35
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      , , , , , (2), , Rifle , Pistol

Periods of UA / CONF :

NJP:

- 20040517 :      Article (Make and utter four worthless checks in the amount of $367.90)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20040 5 17 :       For making and uttering by dishonorably failing to maintain funds.

- 20041216 :       For my initial assignment to Marine Corps Physical Fitness Test and Body Composition Program. My actions are unsatisfactory and not in accordance with the high state of readiness required by the USMC.

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 .

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 134 (Making and uttering worthless chec ks) and Article 121 (Larceny).

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

Applicant’s Issues

1.       Nondecisional issues: The Applicant seeks a change to his assigned re-entry code (RE-4) on his DD Form 214 and his promotion to Corporal reinstated.

2.       Decisional issues : The Applicant contends he was wrongfully accused and punished with an administrative separation after a General Court Martial Presiding Judge dismissed all the statements and evidence against the A pplicant due to a legally binding promise of amnesty by the Battalion Commanding Officer. The Applicant further contends that his service to his nation in time of war was Honorable as evidenced by two combat tours of duty and the awarding of the Combat Action Ribbon and Purple Heart Medal , coupled with post - service diagnos e s of Post - Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury ( TBI).

Decision

Date: 20 1 1 0616         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 issue to the NDRB . In reviewing the Applicant ’ s request, the NDRB completed a thorough review of the circumstances leading to discharge , and the discharge process , to ensure the discharge met the pertinent stan dards of equity and propriety.

The Applicant was in his second year of Bible college when, at the age of 23, he enlisted in the United States Marine Corps on an Infantry Option contract with a four-year enlistment agreement. The Applicant enlisted with a w aiver to enlistment standards for pre-service illegal drug use - marijuana . T he Applicant’s service record contained two paragraph 6105 retention-counseling warnings (weight control assignment and bounced checks) and one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ) , specifically , Article 134 ( M aking and uttering worthless checks). The Applicant’s record of service further documents that he is a combat veteran, having deployed twice to the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM. The Applicant’s record of service documents two combat deployments with a combat Infantry Battalion (March 2004 to October 2004 and July 2005 to February 2006) during which time he was awarded the C ombat A ction R ibbon for direct combat actions and the Purple Heart Medal for combat injuries sustained in action against an enemy force.

During the Applicant’s second deployment to Iraq, he was injured in an Improvised Explosive Device attack , which resulted in neurological testing and being placed on limited duty. Subsequent to his injuries, he was assigned to the Battalion Detention Facility (DETFAC) , Camp Fallujah, Iraq to assist as a detainee handler. While assigned to the DETFAC, a Law of Armed Conflict v iolation was alleged in that a detainee’s property ( $ 1, 700 cash ) went missing while he was being released from detention. The Battalion Commander granted amnesty to all personnel involved in the DETFAC operation as long as the missing funds were found and returned by 0800 the following morning . Concurrently, the Battalion Staff Judge Advocate conducted a command investigation into the missing funds and the techniques and procedures employed by the DETFAC. During the period of amnesty, another Marine assigned to the DETFAC located the missing funds . Because of the return of the money during the amnesty period , t he Battalion C ommander did not pursue judicial action against any of the members. The command investigation could not determine who had taken the money, but proposed that the Applicant was the most likely due to two reasons:

(1) D uring the period of amnesty, the A pplicant proffered a statement that the command could blame him if the investigation had to , in order to allow the other Marines (all married) to redeploy on schedule to see their families , and ,

(2) T he Applicant’s financial history of a pre-service bankruptcy, having written bad checks in service , and now wanting to purchase a new tr uck after the deployment.

The investigation was forwarded to the Commander , Multi-National Force West ; he took cognizance of the investigation and, ultimately, referred charges against the Applicant for trial by General Court Martial. On 30 August 2006, in response to a defense motion, the Military Judge assigned to the case held a motion hearing. After the hearing, the Military Judge ruled that: (1) the Government could not offer any evidence of the accused’s participation in the search for the missing money subsequent to the grant of amnesty , and (2) the government could not use the accused’s statements to government officials subsequent to the grant of amnesty . Due to the Judge’s ruling, the government withdrew the charges from trial by General Court Martial .

On 18 September 2006 , the Applicant was notified by the General Court Martial Convening Authority of his intent to involuntarily separate the Applicant, administratively, from the Marine Corps. The Applicant was notified that the basis of separation was paragraph 6204.3 - fraudulent enlistment due to failure to disclose a pre-service bankruptcy filing, and paragraph 6210.6 - Misconduct (Commission of a Serious Offense) due to a Law of Armed Conflict violation by stealing $1,700 from an Iraqi civilian. The primary basis of the proposed separation was the commission of a serious offense. On 25 September 2006, the Applicant acknowledged the proposed reasons for separation and that the least favorable characterization of service warranted was Under Other Than Honorable Conditions. The Applicant elected to consult with legal counsel and subsequently requested an administrative hearing board be held. The administrative hearing board determined, by a vote of 3-0, that a preponderance of the evidence proved all acts or omissions alleged in the notification, and by the same vote, recommended separation with a General (Under Honorable Conditions) characterization of service. The board voted 2-1 that the separation should not be suspended. The Applicant was discharged from the service on 19 December 2006 with a reentry code of RE-4 ( not recommended for reenlistment ) .

( Nond ecisional Issue s ) The Applicant seeks a change to his assigned re-entry code (RE-4) on his DD Form 214 and that his promotion to Corporal be reinstated. The NDRB is not authorized to change the reentry code or effect promotion or make changes in rank at discharge as requested. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. The Applicant should petition the Board for Correction of Naval Records (BCNR) using DD Form 149. When requesting this change, the Applicant should provide as much documentation regarding the reason for change as possible. The address of the BCNR is Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

Decisional Issues ( ) : . The Applicant requests that his discharge be re-evaluated as he contends that his discharge was improper; the Applicant contends he was wrongfully accused and punished with an administrative separation after a General Court Martial Presiding Judge dismissed all the statements and evidence against the A pplicant due to a legally binding promise of amnesty by the Battalion Commanding Officer. The Applicant further contends that his service to his nation in time of war was Honorable as evidenced by two combat tours of duty and the awarding of the Combat Action Ribbon and Purple Heart Medal, coupled with post - service diagnos e s of PTSD and TBI.

Propriety - In accordance with the Marine Corps Separation and Retirement Manual ( MARCORSEPMAN ) , the Applicant was notified of all applicable reasons for separation in his notification package. In reviewing the evidence of record available and the requirements for each basis of separation, the NDRB determined that the Applicant did meet the minimum requirements , as set forth in the MARCORSEPMAN , for each stated basis for discharge. The Applicant was determined to have committed serious misconduct ( violation of Article 121 and Article 134) by a properly constituted administrative discharge hearing board based on the preponderance of the evidence. The decision of the Court Martial Judge was legally binding for trial in a court of law with rules of evidence, but is not legally bind ing on a non-punitive administrative action where the rules of evidence of a trial by court martial do not apply. Furthermore, d espite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval S ervice in order to maintain good order and discipline. In reviewing the Applicant’s records, t he NDRB determined that the Applicant was afforded all of his rights , that the separation action was in accordance with the MARCORSEPMAN , and that the action was proper; therefore, the NDRB determined that no relief is warranted based on matters of propriety .

Equity - The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. The NDRB reviewed all of the available records, supporting documents, facts (Command Investigation and Article 32 Investigation) , the elements of the discharge, evidence submitted by the Applicant, and circumstances unique to this case. The Battalion Commander became aware that a d etainee’s money was missing; in an effort to recover that money, he granted a period of amnesty for the mon ey to be returned or else face

legal hold in Iraq until the investigation was complete (the unit was two weeks from redeployment to home station ) . During the period of amnesty, a command investigation was started ; when questioned, the Applicant offered that, due to amnesty, if the command needed to blame someone, it could blame him. When questioned further by the investigating officer (the command Staff J udge Advocate), the Applicant clearly stated that he was not actually guilty, but that he was single and had no children, whereas , the other Marines in the unit had wives and children and needed to redeploy on schedule.

The Applicant, and all other Marines (to include contracted interpreters) who were involved in this issue, trusted in, and relied upon, the Battalion Commander’s grant of amnesty with no limitations attached to it. All of the Marines involved in this case testified that they participated in the search and recovery of the money, relying on their expectation that there would be no repercussions toward anyone; they stated that the Commanding Officer made that promise (amnesty) and they trusted in his word. Despite th e grant ing of amnesty by the Battalion Commander and his subsequent decision not to prosecute , the Applicant was referred to a General Court Martial by the G eneral Court Martial Convening Authority . A particular circumstance of interest to the NDRB was the Military Judge’s determination that the blanket amnesty, as issued by the Battalion Commander, was in fact legally binding amnesty ; any evidence from statements provided during that period could not be admitted as evidence in a trial. Lacking any other evidence, the government withdrew the case and subsequently “prosecuted” the Applicant via the administrative separation process - where the more stringent court martial rules of evidence would not apply - for the exact same allegation, with the exact same evidence. The administrative hearing board was presented the Article 32 investigation , which was completely lacking in any physical evidence or any statements that could affix guilt .

After a detailed review of the Command Investigation and the Article 32 hearing, plus the statements of the members who testified at the administrative hearing board, t he NDRB concluded that there was an inequity in the Applicant’s discharge action, is convinced that this was prejudicial to the Applicant, and therefore relief is warranted . Moreover, by a vote of 5-0, the NDRB determined that the characterization of service , as awarded, was inequitable and that relief in the form of an upgrade in the characterization of service is warranted. T he NDRB determined that the Applicant’s failure to disclose a pre-service bankruptcy and a one-time event of bounced checks for personal combat equipment prior to deployment were overcome by his meritorious service during two combat deployments, wherein he earned a C ombat A ction R ibbon for direct combat actions and was a ward ed a Purple Heart Medal for injuries sustained from enemy actions. This meritorious service, coupled with his post - service diagnos es of PTSD and TBI , warrant an upgrade in the characterization of his service at discharge to Honorable.

In cases where no other reason for separation set forth in the MARCORSEPMAN is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation . Since there is no other narrative reason for separation to describe accurately the reason the Applicant was separated, the NDRB determined the reason for the Applicant’s discharge shall change to Secretarial Authority.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and the discharge process, the NDRB determined that the discharge was not equitable . Therefore, the awarded characterization of service shall change to HONORABLE and the narrati ve reason for separation shall change to SECRETARIAL AUTHORITY . 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.

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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USMC | DRB | 2011_Marine | MD1100425

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