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USMC | DRB | 2012_Marine | MD1200177
Original file (MD1200177.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111026
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)       19891031 - 19901107     Active:            19901108 - 19941026
                                             19941027 - 199709 19
                                             19970920 - 20000321
                                             20000322 - 20031113

Period of Service Under Review:
Date of Current Enlistment: 20031114     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060614      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 37
MOS: 0619
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (4) (3) (2) CoC (2) MM (2) LoA (3)

Periods of UA :

NJP:     SCM:              CC:

SPCM:

- 20050603 :       Art icle 81 (Conspiracy)
         Art icle (False official statement)
         Art icle (Larceny) St ealing two pair of shoes valued at over $218.00
         Sentence : RIR E-6

Retention Warning Counseling :

- 20050624 :       For S pecial C ourt -M artial proceedings for the following charges: A rticle 81 , A rticle 107 , a nd A rticle 121

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 901108 UNTIL 031113 ”
         “ ”

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 .



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

Applicant’s Issues

 1.       The Applicant contends he was falsely accused of a crime he did not commit.
2.       The Applicant contends he was unjustly separated from the Marine Corps.
3.       The Applicant contends his record of service outweighs his misconduct.

Decision

Date : 20 1 2 1126            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 sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warning and for of the UCMJ: Article 81 ( Conspiracy ) , Article 107 (False official statement), and Article 121 (Larceny, s tealing two pair of shoes valued at over $218.00 ) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board. On 17 March 2006, an Administrative Separation Board recommended separation Under Other Than Honorable Conditions but recommended the discharge be suspended. The Applicant’s battalion commander recommended separation without suspension and forwarded the separation package to Commanding General, 3rd Marine Division, who recommended separation Under Other Than Honorable Conditions with no suspension to the Deputy Commandant of the Marine Corps (Manpower & Reserve Affairs). Though not found in the record, the NDRB presumes regularity in government affairs and presumed the Deputy Commandant of the Marine Corps approved the separation Under Other Than Honorable Conditions without suspension.

Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was falsely accused of a crime he did not commit. The Applicant submitted a DVD and a lengthy statement detailing how he was innocent of the crimes for which he was convicted at Special Court-Martial. In accordance with Secretary of the Navy Instruction 5420.174D of 22 December 2004, relevant and material facts as stated in a court-martial are presumed by the NDRB to be established facts. As such, matters of propriety related to the conduct of a punitive court-martial (e.g., Special Court-Martial) are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court of Appeals of the Armed Forces. The Applicant’s appellate rights statement and certification of his acknowledgment of those rights, which detail this process, are appended to the verbatim record of trial by court-martial. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Relief denied.
Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was unjustly separated from the Marine Corps. At the Applicant’s Special Court-Martial, he was not awarded a punitive discharge (i.e., Bad Conduct) and was returned to his unit. His commanding officer then determined he was no longer fit to be a Marine and in itiated administrative separation proceedings. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board. On 17 March 2006, an Administrative Separation Board recommended separation Under Other Than Honorable Conditions but recommended the discharge be suspended. The Applicant’s battalion commander recommended separation without suspension and forwarded the separation package to Commanding General, 3rd Marine Division, who recommended separation Under Other Than Honorable Conditions with no suspension to the Deputy Commandant of the Marine Corps (Manpower & Reserve Affairs). Per regulations, when a servicemember is processed for administrative separation after a Special or General Court-Martial that did not result in a punitive discharge, approval for the separation

resides with the Secretary of the Navy. For Marines, this authority has been delegated to the Deputy Commandant of the Marine Corps (Manpower & Reserve Affairs). Though the final decision by the Deputy Commandant was not found in the record, the NDRB presumes regularity in government affairs and presumed the Deputy Commandant of the Marine Corps approved the separation Under Other Than Honorable Conditions without suspension. The Applicant submitted no evidence to the contrary. The NDRB conducted a thorough review of the Applicant’s records, separation proceedings, and his lengthy statement alleging unjust treatment and improper procedures. These issues included questioning whether his punishment fit the crime; the propriety of being put in pre-trial confinement when Marines accused of murder were not in pre-trial confinement; the propriety of being forced to work in the same command after his punishment; the propriety of the actions of the judge, defense counsel, and prosecuting attorney during his court-martial proceedings; and the competence of his defense counsel in deciding not to put the Applicant on the stand. After a thorough review, the NDRB determined the Applicant’s separation proceedings were conducted properly. As stated above, matters of propriety related to the conduct of a S pecial Court-Martial are addressed through the appellate review process by the Navy-Marine Corps Court of Criminal Appeals or through further petitioning for a review by the Court o f Appeals of the Armed Forces. The NDRB determined the Under Other Than Honorable Conditions discharge for Misconduct (Serious Offense) was both proper and equitable. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his record of service outweighs his misconduct. The Applicant was on his fifth enlistment when convicted at Special Court-Martial. He received an Honorable characterization for the previous four enlistments. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. In his current enlistment, the Applicant was convicted at Special Court-Martial and then administratively separated Under Other Than Honorable Conditions. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. R elief deni ed.

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 . 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), 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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