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USMC | DRB | 2011_Marine | MD1100638
Original file (MD1100638.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)       19911121 - 19920607     Active:   19920608 - 19960313 HON
         USMCR (IRR)      19960314 - 19970124

Period of Service Under Review:
Date of Current Enlistment: 19970125     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020228      H ighest Rank:
Length of Service : Y ea rs M on th 04 D a ys
Education Level:        AFQT: 68
MOS: 7212/ 8531  
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX (5 th ) Pistol EX GCM (2) SSDR (2) MM L o A NDSM

Periods of UA / CONF :

NJP: NONE        SCM: NONE                 SPCM: NONE                Retention Warning Counseling : NONE
CC:

- 20011024 :       Offense: Running an endless chain scheme
         Sentence : NFIR

Administrative Corrections to the Applicant’s DD 214

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

          “ 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. 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 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 veteran education benefits .
2.       Applicant contends command impropriety led to his improper/inequitable discharge .
3.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

 Date: 20 1 2 03 28            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 Board conducted a thorough review of the Applicant’s records to determine whether his discharge met the pertinent standards of propriety and equity. The Applicant’s record of service included one Civilian Conviction (24 Oct 2001) for running an endless chain (i.e. , pyramid) scheme. On 16 Nov 2001, the Applicant was sentenced to probation, jail time, and ordered to pay civil fines and approximately $110 restitution to each of approximately 25 people he had enticed into the endless chain scheme he managed. The following information was included in the court documentation located within the records : “San Bernardino County Sheriff’s Office detectives were contacted by CID of the Provost Marshall’s Office from MCB 29 Palms, concerning reports they received from numerous Marines . Complaints indicated (the Applicant) was taking money from Marines and telling them to find other Marines to give them more money, and so on … . CID initially received complaints from two Marines who had been approached by (the Applicant) about his defrauding them of $100 each. They were not offered any services in return, other than an assurance they would receive money in return for bringing in additional participants to his program of ‘Friends Helping Friends . ’ If they were able to recruit two Marines each, for $100, they in turn would make $300 to $400 each. When they did not receive any money, they reported the scam. They also told military investigators (the Applicant) was in possession of a notebook that contained information on how his operation worked. (The Applicant) was questioned by CID investigators; however, refused to answer any questions and asked to speak with an attorney. On 21 Mar 2001, the CO, MCCES signed authorization for a search warrant (requested by CID on 18 Mar 2001) for a search and seizure of (the Applicant’s) personal affects. A notebook was seized, which contained pyramid drawings with a number of victim’s names, which appeared to be in code and (the Applicant’s) name … . CID investigators attempted to question (the Applicant); however, he chose to remain silent. He wanted to make sure he did not incriminate himself after he was read his rights. He has remained silent to everyone, except his attorney and the probation department … . (The Applicant) feels he should have known better and been able to see that this was ‘a wolf in sheep’s clothing . ’ He has learned that he should investigate anything that involves money and its dealings … . (The Applicant) chose to become involved in the swindle of individuals whom he is supposed to be an example and leader to; instead, he made every effort to portray himself to be a friend with only the best of intentions when, in fact, he was only looking out for his financial gain. ” Based on the offense s committed by the Applicant, his command ad ministratively processed him for separation. When notified of a dministrative separation processing using the administrative board procedure on 16 Jan 2002 , the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The Applicant was separated from the Marine Corps on 28 Feb 2002 with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education 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. Additionally, t he 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 contends command impropriety led to his improper/inequitable discharge. The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General’ s Office. Allegations notwithstanding, the Board conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. The records provided very clear and convincing evidence regarding the Applicant’s misconduct that led to his civil arrest and conviction, and the subsequent administrative separation from the Marine Corps. The NDRB could find no evidence to support the Applicant’s claim that command impropriety led to an improper and inequitable discharge. Per the Marine Corps Separation and Retirement Manual (MARCORSE P MAN), a n Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A discharge Under Other Than Honorable Conditions 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 record of service included a civil arrest and conviction for an endless chain scheme. This specific violation is considered a felony offense in the civil jurisdiction in which the Applicant was arrested and was subsequently prosecuted in Superior Court. Additionally, the fact that the Applicant u s ed his rank, experience, and leadership position to take financial advantage of approximately 25 junior Marines for his personal gain aggravated the offenses.

The record also contained an adverse fitness report ( dated 1 Jun 2000-2 Oct 2000 ) in which the Reporting Senior and Reviewing Officer stated , “MRO demonstrated a blatant disrespect toward the Platoon Commander and Platoon Sergeant in front of the Platoon on more than one occasion … . MRO exercised extremely poor judgment as Marine NCO and Section Leader by making derogatory comments and quotes in such a way as to undermine the authority of the Platoon Commander and Platoon Sergeant. The comments and quotes were made in front of the entire platoon in a blatantly disrespectful manner … . I recommend that the MRO not be considered for promotion at any time. MRO lacks initiative and discipline. MRO regularly exhibited high concern for personal convenience during working days and hours. MRO was counseled numerous times for various deficiencies in performance. MRO’s actions display poor character traits and a lack of restraint. I believe the MRO’s actions are unbecoming of a Marine Leader. Due to these deficiencies, I have lost all trust and confidence in MRO . ” In the last fitness report he received in his MOS (as a Sergeant/E-5) prior to transfer to the Marine Corps Communications and Electronics S chool (dated 3 Oct 2000-26 Feb 2001), the Reporting Officials stated , “MRO has a lot of room to grow as a Sergeant of Marines…MRO performs minimum required daily tasks…Ranked 8th out of 8 Sergeants within the Battery . ” After careful examination of and deliberation on the available evidence, the Board determined that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Accordingly, the Board found this issue to be without merit and did not provide a basis for which r elief could be granted. Relief denied .

: (Decisional) ( ) . The Applicant contends 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 his 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 from 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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