Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1101078
Original file (MD1101078.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110323
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Secretarial Authority

Summary of Service
Prior Service:
 Inactive:         USMCR (DEP)       19910617 - 19911008     Active:            19911009 - 19960408
                  19960409 - 19970107                        19970108 - 20001205
                                             20001206 - 20050317

Period of Service Under Review:
 Date of Current Enlistment: 20050318     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081003      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 16 D a y ( s )
Education Level:        AFQT: 40
MOS: 1371 / 7051
Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol (5) (4) (2) (3) (2) (2) KDSM MM (2) CoC LoC LoA MCMABB
Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:      Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20101021
NDRB Documentary Review Docket Number:   MD09-02609
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 .


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

Applicant’s Issues

 1.       The Applicant contends his record of service outweighs his misconduct.
2.       The Applicant contends his A dministrative Separation B oard (ASB) was legally deficient in evidence and improper legal advice to board members. Additionally, he contends that the ASB did not meet the standard of preponderance of evidence.

Decision

Date: 20 1 2 0 717            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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included no 6105 counseling warnings, nonjudicial punishments, or court s -martial for violations of the Uniform Code of Military Justice (UCMJ ) . Based on the results of an ASB, command administratively processed for separation. When notified of a dministrative separation processing using the administrative board procedure, the Applicant exercis ed rights to consult with a qualified counsel and request an administrative board , however , his record did not indicate whether he waived or exercised his right to submit a written statement .

: (Decisional) ( ) . The Applicant provided testimony and highlighted his performance and conduct during the period of enlistment under review . After a careful review of the Applicant’s official service records and taking into consideration his testimony and the facts and circumstances unique to this case, the NDRB determined that relief was not warranted based on equitable grounds. R elief denied.

: (Decisional) ( ) . The Applicant contends his ASB was legally deficient in evidence and improper legal advice to board members. Additionally, he contends that the ASB did not meet the standard of preponderance of evidence. After a thorough review of the records, supporting documents, facts, testimony, and circumstances unique to thi s case, the NDRB determined that the standard of preponderance of evidence was not met at the ASB and that relief was warranted. Of particular note, the Government’s case rested entirely on a single accuser whose testimony was contradicted by numerous other witnesses and who had a motive to malign a Marine associated with the Applicant. Further, the accuser was never made available to the defense until five minutes before he gave his telephonic testimony to the ASB. Finally, the NDRB discerned no motive for the Applicant to conduct the alleged misconduct and jeopardize a long and distinguished career, particularly in that he was a successful recruiter who always made mission and had received glowing fitness reports. By a unanimous vote, the NDRB voted to upgrade the characterization of service to Honorable and change the narrative reason for separation to Secretarial Authority . Relief granted .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, testimony, and discharge process, the Board found the discharge was im proper . B ased on facts and circumstances unique to this case and after considering the Applicant’s in-service performance and conduct and his testimony to the NDRB, the Board unanimously voted that the characterization of service shall HONORABLE and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.


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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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

  • NAVY | DRB | 2011_Navy | ND1101834

    Original file (ND1101834.rtf) Auto-classification: Denied

    Narrative Reason for Discharge:Authority for Discharge:MILPERSMAN3630600 [PATTERN OF MISCONDUCT] DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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.

  • NAVY | DRB | 2013_Navy | ND1301031

    Original file (ND1301031.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, medical and 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 is not eligible for further reviews from the NDRB. ”...

  • NAVY | DRB | 2012_Navy | ND1200067

    Original file (ND1200067.rtf) Auto-classification: Denied

    The Applicant contends his record of service warrants an upgrade. The civilian conviction provided the preponderance of the evidence that he committed a serious offense, he elected an ASB, the ASB determined he committed the offenses and recommended a General discharge, and the Separation Authority reviewed the findings and ordered the Applicant to be discharged. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

  • NAVY | DRB | 2011_Navy | ND1100180

    Original file (ND1100180.rtf) Auto-classification: Denied

    The ASB, after examining all the evidence, to include the Applicant’s service records, testimony provided by the Applicant, character witnesses, and a PhD representative from the Naval Drug Lab, found by a preponderance of the evidence (2-1 vote) that the Applicant had committed misconduct and further recommended he be separated from the Navy with a General (Under Honorable Conditions) discharge.Despite a servicemember’s prior record of service, certain serious offenses, even though...

  • NAVY | DRB | 2009_Navy | ND0900146

    Original file (ND0900146.rtf) Auto-classification: Denied

    The Applicant was unable during any of these proceedings to convince either his CO or the ASB he either didn’t knowingly use cocaine or the lab test was in error. Especially found credible was the testimony of Mr. S. that the Applicant could have taken cocaine on the Friday or Saturday preceding the urinalysis and still tested positive at the levels indicated in the drug test administered on 14 November 2006. The NDRB determined the awarded discharge characterization was appropriate and an...

  • USMC | DRB | 2010_Marine | MD1001427

    Original file (MD1001427.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, discharge process, and his personal statement, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ” 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...

  • NAVY | DRB | 2012_Navy | ND1200752

    Original file (ND1200752.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: Pertinent Regulation/Law A. Relief granted.Summary:...

  • NAVY | DRB | 2010_Navy | ND1000381

    Original file (ND1000381.rtf) Auto-classification: Denied

    The Applicant was properly notified that he was being administratively processed and appeared before an administrative board, who determined that he be separated from the Navy with an Under Other Than Honorable Conditions characterization. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s personal testimony, post service factors, summary of service, official medical and record entries, and the discharge process, the Board found Therefore,...

  • NAVY | DRB | 2010_Navy | ND1000751

    Original file (ND1000751.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A.Naval Military Personnel...

  • NAVY | DRB | 2010_Navy | ND1001652

    Original file (ND1001652.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 discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical...