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USMC | DRB | 2011_Marine | MD1100627
Original file (MD1100627.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110105
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)       19940930 - 19950108     Active:   19950109 - 20000227 HON
                                    USMC 20000228 - 20030731 HON
Period of Service Under Review:
Date of Current Enlistment: 20030801     Age at Enlistment: 30
Period of E nlistment : Years Months
Date of Discharge: 20080229      H ighest Rank:
Length of Service : Y ea rs M on ths 29 D a ys
Education Level:        AFQT: 32
MOS: 3529/3521
Proficiency/Conduct M arks (# of occasions): NOT APPLICABLE       Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX (3) Pistol SS NMCAM (4) GCM (3) ICM GWOTSM NDSM (2) HSM SSDR (2) AFEM M UC (4) CG M UC
Periods of UA / CONF :

NJP: NONE                 SCM: NONE                 SPCM: NONE      

CC: 1
- 2007 0911 :       Offense: Domestic Violence, Serious Felony
         Sentence 20071010 : Probation (3 years) Fines ($1080.00)

Retention Warning Counseling : 3

- 20050118:      For failure to maintain Marine Corps height and weight standards as required by MCO P6100.12. Meet your weight/body fat reduction goals by losing the prescribed 41 lbs and 6 percent body fat within 6 months.

- 20061229 :       For your violation of Art 92, Art 128, and Art 134 , which all resulted in this command being informed of your involvement in the Domestic Violence assault and battery of your spouse.

- 20070702:      For second assignment to Squadron Body Composition Program
Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19950109 UNTIL 20030731 ”

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, 128 , and 134.



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

Applicant’s Issues

 1.       Applicant seeks a discharge upgrade to obtain education benefits.
2.       Applicant seeks a discharge upgrade to increase employment opportunities.
3.       Applicant believes his post-service achievements warrant consideration for a discharge upgrade .

Decision

 Date: 20 1 2 03 15            Location: Washington D.C .         R epresentation : none

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 one decisional issue for the Board’s consideration. The Applicant’s record of service included three 6105 counseling warnings and one civilian conviction on 11 Sep 2007 for domestic violence and serious felony that occurred on 26 Dec 2006 . 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 request an administrative board . Upon completion of t he a dministrative b oard proceedings, the admin board recommended the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions characterization of service.

On 27 Nov 2007, the Applicant’s Commanding Officer (MWSS-373) endorsed his administrative separation package stating , “…The factual basis for this recommendation is (the Applicant’s) felony conviction by the Superior Court of California for infliction of corporal injury on spousal cohabitant. On 26 Dec 2006, (the Applicant) and his wife had a disagreement, which led to a physical confrontation. During the argument (the Applicant) grabbed his wife by the hair and dragged her down the stairs, during which he dropped her on the steps and she broke her left foot. His wife was transported to Balboa Medical Center San Diego for treatment and released on her own recognizance. She was placed in a foot cast and treated for a broken foot. The action described above constitutes as a “qualifying conviction” in which the Lautenberg Amendment applies. I have conducted a thorough review of (the Applicant’s) service since h e joined MWSS-373. I believe (the Applicant’s) conduct is unbecoming of the standards we hold as Marines. I do not recommend that he be retained . ”

On 11 Dec 2007, the Applicant submitted a request to the Commanding General, 3d Marine Aircraft Wing (CG, 3d MAW) requesting a conditional waiver of the administrative board hearing in exchange for an Honorable or General (Under Honorable Conditions) discharge, or a 12 - month suspended discharge. The CG, 3d MAW disapproved the Applicant’s request on 27 Dec 2007 and directed the administrative board to proceed as appointed. On 17 Dec 2007, the Applicant’s Commanding Officer again endorsed his administrative separation package stating , “(The Applicant) is requesting a General (Under Honorable Conditions) discharge. His conduct has not been that of a Marine deserving an Honorable or General Discharge because of his felony conviction of domestic violence which resulted in his sentencing to jail time, probation, fines and the Domestic V iolence Resource Project. Further, (the Applicant) has a record of substandard performance. (The Applicant’s) performance and conduct throughout his career have been below standards. Additionally, (the Applicant) fails to maintain the standards of a Marine. (The Applicant) was assigned to the Marine Corps Body Composition Program (BCP) on 18 Jan 2005, because he exceeded the standard by 41 pounds and 6% body fat and is currently on his second assignment to the program. (The Applicant) clearly has deviated significantly from not only the standards of good order and discipline but also our core values and therefore it is imperative that his characterization of service be reflective of this performance. (The Applicant) has not been an asset to this command or to the Marine Corps. It is my intent that he be discharged expeditiously and receive an Other Than Honorable Discharge . ”



On 3 Jan 2007, the Applicant submitted a written rebuttal to the Page 11 counseling/retention warning he received ( 29 Dec 2006 ) relating to domestic violence upon his spouse. “I was involved in an altercation with my spouse on 26 Dec 2006. Upon which resulted in me physically escorting my spouse out of the household. While going down the stairs she lost her footing on or about the 4th or 5th step from the bottom which resulted in a broken foot. After realizing that my spouse was injured I immediately stopped trying to remove her from the home. I then became very concerned for my wife’s well-being because I love her very much and would never do anything to hurt her on purpose. This accident was purely an accident. After realizing she was hurt I then proceeded to call a friend a Marine who I work with from my company to assist me, because I was in shock from what had just taken place. With the exception of my wife’s foot there are no other marks on her. I have been restricted from my home allowing no phone contact or third person contact with my spouse by a military protective order being placed on me. After all of these legal procedures are over I do hope to maintain my marriage, because my wife is the love of my life and my heart. This is the first time anything like this has ever happened and it will never happen again . ” On 18 Jan 2008, the administrative board proceedings were conducted. Upon conclusion, the Senior Member of the Board sent the Board results to the convening authority as follows: By a preponderance of the evidence, the Applicant was guilty of all acts or omissions alleged; the Applicant should be separated from the Marine Corps (without suspension); the Applicant should be discharged with an Under Other Than Honorable Conditions discharge. On 26 Feb 2008, the Separation Authority concurred with the administrative separation board and directed that the Applicant be discharged with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense). The Applicant was discharged as directed on 29 Feb 2008.

Issues 1-2 : (Nondecisional) The Applicant seeks a discharge upgrade to obtain education benefits and increase employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant believes his post-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 as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review. 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 fr om an 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 Under Other Than 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 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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