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USMC | DRB | 2011_Marine | MD1100830
Original file (MD1100830.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110209
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)       19920623 - 19930614     Active:   USMC 19930615 - 19990126 HON
                                    USMC 19990127 - 20020606 HON
                                     USMC 20020607 - 20050720 HON
Period of Service Under Review:
Date of Current Enlistment: 20050721     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080414      H ighest Rank:
Length of Service :        Y ea rs M on ths 24 D a ys (current enlistment)
                  14 Years 09 Months 29 Days (total service)
 Education Level:        AFQT: 52
MOS: 0629/8411
Proficiency/Conduct M arks (# of occasions): 4.5/4.6(NFIR)        Fitness R eports :

Awards and Decorations ( per DD 214):      Rifle EX (2) Pistol MM GCM (3) NMCAM (3) GWOTSM GWOTEM SSDR (6) NDSM (2) NUC (2) PUC MM (3) L o C C o C L o A (5)

Periods of UA / CONF :

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

Administrative Corrections to the Applicant’s DD 214

The NDRB did n ote administrative error s on the original DD Form 214:

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 930615 UNTIL 050720 ”
         “ 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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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 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.       Applicant seeks a discharge upgrade to re-enlist in the U.S. Marine Corps.
2.       Applicant seeks a discharge to obtain veteran education benefits .
 3.       Applicant seeks a discharge upgrade to increase employment opportunities.
 4.       Applicant contends he served honorably and never committed recruiter malpractice.
 5.       Applicant contends he was never informed of the charges against him when he submitted the request for separation in lieu of trial.
6.       Applicant contends he chose not to dispute the charges because of a family illness and to avoid the humiliation of a court-martial.
 7.       Applicant contends he was treated unfairly due to the Recruiting Command intending to make his case an example.

Decision

Date: 20 1 2 0 4 2 6            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 four decisional issues for the Board’s consideration. The Applicant’s service records did not include any 6105 retention warnings, commanding officer nonjudicial punishment s (NJP s ) , or trial by courts-martial. The record did indicate the Applicant , on 15 February 2008 , while on recruiting duty in San Antonio, Texas, was charged with several violations of the Uniform Code of Military Justice (UCMJ) to include : Article 80 ( Attempts, to effect the unlawful enlistment of prospective recruit a pplicant A , by telling her to omit information that he knew would make her unqualified for service, between o/o 1 May-18 Dec ember 2007 ), Article 92 ( Failure to obey an order or regulation, 3 specifications: Dereliction in the performance of duties , as Staff Noncommissioned Officer in Charge of a recruiting substation, was derelict in that he willfully failed to ensure that prospective applicants were properly screened and qualified for enlistment in the Marine Corps, paperwork was completed correctly and submitted in a timely manner, and the recruiters under his charge were properly trained and supervised as it was his duty to do so, between o/o 1 May-18 Dec ember 2007 ; Violated Depot Order P1100.4B by wrongfully engaging in a nonprofessional personal relationship with prospective recruit applicant B , by calling and sending inappropriate text messages to her cellular phone , between o/o 1 May-18 Dec ember 2007 ; Violated Depot Order P1100.4B by wrongfully engaging in a nonprofessional personal relationship with prospective recruit applicant A , by propositioning her for sex , between o/o 1 May-18 December 2007 ), and Article 134 ( General Article, 5 specifications: Was disorderly by making racial slurs about USMC Master Sergeant A, which conduct was of a nature to bring discredit upon the A rmed F orces, between o/o 1 May-18 December 2007 ; W as disorderly by making racial slurs about USMC Master Sergeant B , which conduct was of a nature to bring discredit upon the A rmed F orces, between o/o 1 May-18 December 2007; Was disorderly by making racial slurs about USMC Master Sergeant C , which conduct was of a natu re to bring discredit upon the A rmed F orces, between o/o 1 May-18 December 2007; Was disorderly by making racial slurs about a USMC Gunnery Sergeant, which conduct was of a nature to bring discredit upon the A rmed F orces, between o/o 1 May-18 December 2007; W rongfully solicit prospective recruit a pplicant A , to fraudulently enlist by omitting information that would make her unqualified for service, between o/o 1 May-18 December 2007 ) .

After consultation with qualified counsel , the Applicant submitted a request for separation in lieu of trial by court-martial to the convening authority. His request stated , “In accordance with paragraph 6419 of the MARCORSEPMAN, I request administrative separation from the U.S. Marine Corps in lieu of trial by court-martial. I have been advised of and understand the rights afforded to me by the UCMJ, Article 31. I respectfully request separation with a characterization of service of General (Under Honorable Conditions). However, I understand that the Commanding General, MCRD San Diego/WRR, may separate me with an other than honorable discharge. I am willing to accept the characterization of discharge approved by the

Commanding General, MCRD San Diego/WRR. I have discussed this request with my defense counsel, and I am completely satisfied with his advice. I understand that the information in this request may not be used contrary to the provisions of the Manual for Courts-Martial (MRE 410). I voluntarily admit that I have committed the following acts of misconduct that render me triable by a court-martial: violation of Article 80, a tte m pt to effect the unlawful enlistment of a prospective recruit applicant, Article 92, t h r ough an inappropriate personal relationship with a prospective recruit applicant, and Article 134 through the use of inappropriate racial slurs and disorderly conduct. I also (unreadable) sentence authorized by the UCMJ as implemented by the Manual for Courts-Martial, for the offenses above include a B ad C onduct D ischarge, confinement for up to 12 months, forfeiture of 2/3 pay of my pay per month for a period of 12 months, reduction to the pay grade of E-1, and other lawful punishments. Prior to submitting this request, my counsel has explained each element of the offenses with which I have been charged, and I completely understand each element. Additionally, I understand that a separation with a characterization of service under other than honorable conditions is authorized. I am aware of the adverse nature of such a characterization and its possible consequences. Having discussed this matter with my counsel, I am absolutely convinced that this request is in my best legal and personal interest. I understand that I have an unqualified right to withdraw this request at any time prior to it being approved by the discharge authority, and that under no circumstances can any statements made by me in connection with this request be admissi ble against me in court-martial.. .I understand that my discharge from the naval service, contingent upon acceptance of this request, may be under other than honorable conditions and will be affected without consideration of my case by an administrative discharge board. I completely understand that if given a discharge under other than honorable conditions, I may be deprived of virtually all veteran’s rights otherwise provided to me under both federal and state law. I also understand that I may expect to encounter substantial prejudice in civilian life in situations where the character of my service in, and subsequent discharge from, any branch of the armed forces may have a bearing. I n accordance with the MARCORSEPMAN, if I am awarded an other than honorable discharge, I understand that this will result in my being reduced to pay grade E-3 (Lance Corporal). In determining the characterization of service for my discharge, I would respectfully request that the Commanding General consider the time and service I have contributed to the Marine Corps. I respectfully request administrative separation from the U.S. Marine Corps in lieu of trial by court-martial. Thank you for your attention to this correspondence” (sign ed by Defense Counsel and the Applicant).

On 27 Feb ruary 2008, the Applicant’s Defense Counsel submitted a request to the General Court - Martial Convening Authority (GCM C A) requesting consideration for a General (Under Honorable Conditions) discharge based on the Applicant’s total record of service, and the stigma that an Under Other Than Honorable Conditions discharge would create for potential employers and his ability to become a contributing member of society. On 4 Mar ch 2008, the Applicant submitted a letter to the G CM C A requesting consideration for a General (Under Honorable Conditions) discharge based on his previous 14.5 years of honorable service, the dire illness of his 15 year old sister , and his ability to obtain post-discharge employment. After careful review of the facts and circumstances surrounding the Applicant’s case, the General Court - Martial C onvening A uthority accepted his request for separation in lieu of trial by court- martial and directed that he be administratively separated with an Under Other Than Honorable Conditions characterization of service. The Applicant was discharged as directed on 14 April 2008.

: (Nondecisional) The Applicant seeks a discharge upgrade to re-enlist in the U.S. Marine Corps. 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 B oard for Correction of Naval Records 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.
Issues 2-3: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education benefits and increase his employment opportunities. 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 r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
Issues 4-7 : (Decisional) ( ) . The Applicant contends he served honorably and never committed recruiter malpractice ; that he was treated unfairly due to the Recruiting Command intending to make his case an example ; that he was never informed of the charges against him when he submitted the request for separation in lieu of trial ; and that he chose not to dispute the charges because of a family illness and to avoid the humiliation of a court-martial. The Board reviews the propriety and equity of each Applicant’s discharge individually. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval S ervice. As detailed above, t he

Applicant requested discharge for the good of the service to escape trial by court-martial. The Applicant admitted guilt to the charges preferred against him , in writing , and he further certified his complete understanding of the negative consequences of his actions and that characterization of service could be under other than honorable conditions. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his action s. Per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), w hen the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as Honorable. However, an Under Other Than Honorable Conditions discharge is warranted is 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 conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the high standards of conduct expected of all Marine Corps Recruiters, especially one of his grade and length of service, and f alls short of w hat is required for an upgrade in the characterization of service. Accordingly, the NDRB determined this issue did not provide a basis for which relief could be granted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the separation in lieu of trial by court-martial process , the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is encouraged and 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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