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USMC | DRB | 2011_Marine | MD1101386

Original file (MD1101386.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110510

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:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 20060828     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091006      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 04 D a y ( s )
         Active: Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 93
MOS: 0311
Proficiency/Conduct M arks (# of occasions): NFIR / NFIR

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

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

CIVIL ARREST:

- Unknown :        Charges: Two counts of intoxicated manslaughter and two counts of negligent homicide from an incident that occurred on 20081031. Applicant was transported to Hospital for injuries sustained in crash.

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 .

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

Applicant’s Issues

1.        The Applicant see ks a change in his RE-code .
2 .       The Applicant argues unfair/ illegal discharge procedures.
3 .       The Applicant contends his discharge wa s inequitable , because it was based on an isolated incident.
4 .       The Applicant contends h is record of service outweighs his misconduct.
5 .       NDRB Issue: T here is no longer a factual basis for the discharge.

Decision

Date : 201 2 0531             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs 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 l ed to discharge and the discharge process to ensure the pertinent standards of equity and propriety were met. The Applicant’s record of service included 6105 counseling warnings , no nonjudicial punishments, and no courts-martial for violations o f the Uniform Code of Military Justice (UCMJ). Based on a civilian arrest for intoxicated manslaughter and negligent homicide , his command administratively processed for separation . When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant see ks a change in his 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 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.

: ( Decisional) ( ) . The Applicant stated that his discharge was handled unfairly and illegally in that he was discharged without notice, hearing , board, offer of petition , or any other sort of due process . The Applicant signed a letter dated 26 August 2009 acknowledging he received the Notification of Discharge letter dated 20 August 2009 that depict ed his rights to discharge proceedings. These included his right s to consult with counsel, request a hearing before an A dministrative Separation B oard, present written statements to the Commanding General, Headquarters, Fourth Marine Division in rebuttal to the proposed discharge, and to obtain copies of documents that will be forwarded to Commanding General, Headquarters, Fourth Marine Division, supporting the basis of the proposed discharge . Furthermore, the Applicant waived his rights to consult with counsel, request a hearing before an Administrative Separation Board, and include written statements in rebuttal to the proposed separation . Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge wa s inequitable , because it was based on an isolated incident. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps to maintain proper order and discipline. Civilian charges of intoxicated manslaughter and negligent homicide equate to violations of UCMJ Article 119 and warrant processing for administrative separation regardless of grade or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general cou rt-martial. The Applicant was processed for commission of a serious offense . However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Relief denied.

: (Decisional) ( ) . The Applicant stated that he was always a “stand up Marine. ” Service members may be separate d based on civilian arrests when the same or closely related offense would warrant a punitive discharge per the Manual for Courts-Martial. Manslaughter is covered under Article 1 19 of the UCMJ . A military or civilian conviction is not required for discharge under the provision of commission of a serious offense. Th i s offense could result in an unfavorable discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant ’ s actions brought discredit upon the Marine Corps. Based on the civilian charges, hi s command chose not to pursue a punitive discharge or confinement under the UCMJ but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge equitable and no more severe than the characterization of discharge given others in similar circumstances. Relief denied.

Issue 5: (NDRB Issue) (Decisional) ( ) . The Applicant was alleged to have committed a serious offense on or about 31 October 2008 of two counts of intoxicated-involuntary manslaughter when he was involved in a single vehicle accident in the vicinity of Lufkin, Texas. On 27 August 2009 , a grand jury indicted the Applicant for two counts of intoxicated manslaughter and two counts of negligent homicide from this incident. The Applicant’s command discharged him on 6 October 2010 for the commission of a serious offense. On 1 November 2010 , the Applicant was found not guilty of all charges brought against him, and his record was expunged on 21 December 2010. The Applicant’s discharge was proper and equitable at the time of discharge , however, being that the Applicant was found not guilty of the charges brought against him, there no longer exists a factual basis for the discharge. As the Applicant’s service was otherwise honorable, the NDRB voted 5-0 to upgrade the characterization of service to Honorable and 5-0 to 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 s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found the discharge was proper and equitable at the time of discharge . H owever, as a result of a not guilty finding in civilian court, there is no longer a factual basis for the discharge. Therefore, the awarded characterization of service shall and the narrative reason for separation shall . 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 Disabled 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

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USMC | DRB | 2011_Marine | MD1101386

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