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USMC | DRB | 2012_Marine | MD1201431
Original file (MD1201431.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120622
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to: HONORABLE or
         Narrative Reason change to:
        
Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19910807 - 19920728     Active:   19920729 - 19960123
Active:  19960124 - 19991013     Active:  19991014 - 20040715
Active:  20040716 - 20070715

Period of Service Under Review:
Date of Current Enlistment: 20070716     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120211      H ighest Rank:
Length of Service : Y ea rs M on ths 27 D a ys
Education Level:        AFQT: 38
MOS: 0369, 0911, 0918, 0311
Proficiency/Conduct M arks (# of occasions): NONE         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (11) Pistol CoC (3) CGCM (2) (2) JMU A MCDIR (5) (2) (5) (2) (6)

Periods of UA / CONF :

NJP:

- 20100730 :       Article (Provoking speech, gestures , 2 specifications )
         Specification 1: O n or about 27 November 2010, wrongfully use provoking gestures, to wit: walking toward First Sergeant R___, wielding a knife
         Specification 2: O n or about 27 November 2010, wrongfully use provoking gestures, to wit: walking toward First Sergeant R___, wielding a golf club.
         Article (Assault , on or about 27 November 2010, unlawfully struck First Sergeant R___, by pushing First Sergeant R____ back with his hands.
         Awarded: (2 months) Suspended: (1 month)

G CM:

- 20110627 :       Art icle (Assault , 5 specifications )
         Specification 1: O n or about 9 August 2008, assaulted spouse by pushing her, strangling her , and punching her in the head.
         Specification 2: O n or about 19 September 2010, assaulted (spouse) by grabbing her arms.
         Specification 3: O n or about 18 September 2010, assaulted (son) by pushing him against a bunk bed, a child under the age of 16 years old.
         Specification 4: O n or about 10 September 2010, assaulted (spouse) by pushing her and punching her in the legs.
         Specification 5: O n or about 5 July 2010, assaulted (spouse) by throwing a dart at her lower left knee.
        
         Art icle (General Article; on or about 6 August 2008, had a duty for the care of his two sons, children under the age of 16 years, and did endanger their physical health, safety , and welfare, by passing out while intoxicated in his personally owned vehicle while the children were in the vehicle, and that such conduct constituted culpable negligence)
         Art icle (Failure to obey order or regulation , 2 specifications )
         Specification 1: O n diverse occasions, between 1 November 2009 and 1 September 2010, violate a lawful general order by wrongfully using federal government communications systems and equipment for unauthorized purpose to wit: wrongfully accessing and storing pornography on a government laptop.
          Specification 2: O n or about 11 January 2010, failed to obey a military protective order by being within 100 feet of (wife and children).
         Sentence : 80 days, RIR to E-7, Reprimand
SCM: NONE        CC:

Retention Warning Counseling :

- 20100730 :       For provoking gestures, assault, and wrongful interference with an adverse administrative proceeding; reference NJP dated 20100730.

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 P1900.16F), 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 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 in-service conduct and accomplishments warrant consideration for an upgrade.
2.       The Applicant contends his discharge is inequitable , because his court-martial sentence did not include a punitive discharge.
3.       The Applicant contends his discharge is inequitable based on the Administrative Separation Board’s recommendation of a suspended separation.
 4.       The Applicant contends that a bad marriage, personal problems, and alcoholism were mitigating factors in his misconduct.

Decision

 Date: 20 1 3 0 410            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. T he 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, for o f the Uniform Code of Military Justice (UCMJ): Article 117 ( Provoking speech, gestures , 2 specifications) and Article 128 ( Assault ) , and G eneral C ourt- M artial for of the UCMJ: Article 128 (Assault, 5 specifications ) , Article 134 ( General Article ), and Article 92 (Failure to obey order or regulation, 2 specifications) . 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 rights to consult with a qualified couns el and request an administrative board . The Administrative Separation Board determined by majority vote that the preponderance of evidence prove d all acts or omissions alleged in the notification and recommended separation from the Marine Corps. Furthermore, the Administrative Separation Board recommended that the Applicant be separated Under Other Than Honorable Conditions but that the separation be suspended for 12 months. A minority report fr om the Administrative Separation Board recommended that he be separated with a General (Under Honorable Conditions) discharge with no suspension. The Separation Authority concurred with all of the board’s recommendations except for the suspended discharge and ordered the Applicant to be separated Under Other Than Honorable Conditions for Misconduct (Serious Offense).

: (Decisional) ( ) . The Applicant contends his in-ser vice conduct and accomplishments warrant consideration for an upgrade. The Applicant served in the Marine Corps for 19 ½ years, attained the rank of Master S ergeant, served multiple combat tours as a combat unit leader, and served as a drill instructor and water safety/survival instructor. During that time, he received Honorable discharges for four enlistments. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. His fifth enlistment started on 16 July 2007, and Block 18 of his DD Form 214 lists his continuous honorable active service as being from 29 July 1992 until 16 July 2007 (Note: The last day of his continuous honorable active service is actually 15 July 2007 , so his DD Form 214 is off by one day). During his fifth enlistment, he was found guilty of two serious UCMJ violations at NJP and was found guilty of multiple serious UCMJ violations at a General Court-Martial. While in his fifth enlistment, t he 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 in his fifth enlistment , 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.


: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because his court-martial sentence did not include a punitive discharge. The Applicant contends that it was unfair for his comma nd to discharge him after his G eneral C ourt- M artial sentence did not include a punitive discharge and only reduced him from E-8 to E-7 . Administrative discharge processing is administrative in nature and is a separate and distinct process from punitive proceedings such as NJP or court-martial. Furthermore, the Applicant acknowledged in his pre-trial agreement, dated 14 June 2011, that he may be processed for administrative discharge from the United States Marine Corps and that such an administrative discharge could result in an Under Other Than Honorable Conditions characterization of service. The NDRB determined his discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable based on the Administrative Separation Board’s recommendation of a suspended separation . The Administrative Separation Boar d , by a vote of 2 to 1, recommended the Applicant be separated Under Other Than Honorable Conditions but that the separation be suspended for 12 months. The board’s recommendation is just that, a recommendation. Per the Marine Corps Separation and Retirement Manual , the Separati on Authority has the final authority to approve the separation and disappro ve suspension of the separation. Based upon the evidence of record, the NDRB found no improprieties or inequities in the App licant’s discharge processing. Relief denied.

4: (Decisional) ( ) . The Applicant contends that a bad marriage, personal problems, and alcoholism were mitigating factors in his misconduct. While the Applicant may feel that his family and personal difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. 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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