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USMC | DRB | 2012_Marine | MD1200933
Original file (MD1200933.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120316
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)       20021127 - 20030727     Active:   20030728 - 20061001 HON

Period of Service Under Review:
Date of Current Enlistment: 200 61002     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081202      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 57
MOS: 0411
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) (2) COC (Individual Awd)

Periods of UA :

NJP:     SPCM:    CC:

SCM:

- 20080229 :       Art icle (False official statement, 3 specifications )
         Specification 1: Sign housing application claiming G_ M. W_ was residing with him only as a family care provider
         Specification 2: Sign travel claim for L_ W_-G_, S_ W_, and D_ H_ as his dependents
         Specification 3: Sign Defense Eligibility Enrollment Recording System Application claiming L_ W_-G_, S_ W_, and D_ H_ as his dependents
         Article 134 (General A rticle , wrongful marriage )
          Sentence : (20080229-20080323, 24 days)

Retention Warning Counseling :

- 20070507 :       For regarding your lack of integrity. You presented falsified legal documents to the MCB Hawaii IPAC stating that you had adopted three children when you had not. As well, you obtained base housing by telling them that your adopted daughter was on the base and would be living there when in fact she was not. You were subsequently evicted from base housing for the fraud. In all instances when questioned by your chain of command y ou failed to tell the truth.

- 20070823 :       For your lack of judgment and hesitation to produce required information and documentation concerning the legality of your adoption and marriage paperwork has tarnished your integrity and w asted valuable Command time.



- 20070827 :       For your financial irresponsibility by failing to pay your rent for 2 months, which is a violation of Article 134 of the UCMJ (debt, dishonorably failing to pay) and your subsequent loans from Navy/Marine Corp s Relief in the amount of $4,954.42 to pay your bills.

- 20080815 :       For your continued exhibited immaturity, lack of initiative , and consistently poor judgment as well as your inability to be honest and truthful in your dealing with your chain of command and outlying agencies. You failed to meet the most basic standards of performance expected of a Marine of your rank and time in grade and time in service. You were instructed by a SNCO to stop checking out and return to your work section and failed to adh ere to those instructions.

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 seeks a change in his RE-code.
2.       The Applicant requests that all punishment be rescinded and his rank restored.
 3.       The Applicant contends he was not allowed to bring forth any evidence or offer any mitigating or extenuating circumstances at his Summary Court-Martial.
4 .       The Applicant contends his record of service outweighs his misconduct.

Decision

 Date : 20 1 3 0221            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 warnings and for of the UCMJ: Article 107 ( False official statement , 3 specific ation s) and Article 134 (General A rticle, wrongful marriage) . Based upon the severity of the Applicant’s offenses, his numerous counseling entries, and his Summary Court-Martial , the command surmised that the Applicant lacked the ability to adjust to the rules and regulations of the Marine Corps. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised his right to consult with a qualified counsel but waived rights to submit a written statement and request an administrative board .

: (Nondecisional) The Applicant seeks a change in his RE-code to reflect honorable service and to reenlist . 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.

: (Nondecisional) The Applicant requests that all punishment be rescinded and his rank restored. This issue does not serve to provide a foundation upon which the NDRB can grant relief. The NDRB has no jurisdiction over the reinstatement or restoration of a former service member’s rank. Concerns regarding this matter can be addressed to the Board for Correction of Naval Records at http://www.donhq.navy.mil/bcnr/bcnr.htm. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: ( D ecisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was not allowed to bring forth any evidence or offer any mitigating or extenuating circumstances at his Summary Court-Martial. On his DD Form 293, the Applicant provided a point by point explanation of the charges he was found guilty of at court-martial. A review of the records shows that the Applicant was originally charged at the Summary Court-Martial with violations of UCMJ Articles 81, 107, 132, and 134. At the Summary Court-Martial, however, the Applicant pled guilty to three specifications of Article 107 and one specification of Article 134. He was found not guilty of the remaining seven specifications. If the Applicant felt he was innocent of the charges, he should not have pled guilty and should have presented evidence and testimony at this court-martial. After the Summary Court-Martial, the Applicant was notified of administrative separation processing for Misconduct (Serious Offense). T he Applicant exercised his right to consult with a qualified counsel but waived rights to submit a written statement and request an administrative board . Again, he was offered the opportunity to present his case of innocence

through submitting a statement to the Separation Authority or appearing before an administrative separation board. Instead, he waived those rights, thus accepting the Under Other Than Honorable Conditions discharge for Misconduct (Serious Offense). After reviewing the Applicant’s service records and his detailed statement, the NDRB found the discharge was warranted and was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends he served honorably for over five years , suggesting that his record of service outweighs his misconduct. The Applicant received an Honorable discharge for his first enlistment from July 2003 to October 2006. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. In his second enlistment, the Applicant received four retention counseling warnings for lack of integrity and sound judgment, immaturity, financial irresponsibility, dishonest behavior, and lack of initiative. Further, he was convicted at a Summary Court-Martial of serious violations of the UCMJ. 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. 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 . 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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