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USMC | DRB | 2012_Marine | MD1201433
Original file (MD1201433.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)       19981223 - 19990920     Active:   19990921 - 20021003

Period of Service Under Review:
Date of Current Enlistment: 20021004     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030704      H ighest Rank:
Length of Service : Y ea rs M on ths 1 D a y
Education Level:        AFQT: 59
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / 2.3 ( )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) MM

Periods of UA / CONF :

NJP:

- 20021114 :       Article (Absence without leave, on or about 26 October 2002, did absent himself from his appointed place of duty, in particular, he was not at the Corporal’s Course at the appointed time)
         Article (False official statements, on or about 26 October 2002, made a false verbal statement to GySgt O___, of the Corporal’s Course, in that he stated the reason for not being at his appointed place on time was due to his wife having miscarriage, as statement verified as false)
         Awarded: (30 days) Suspended: (30 days)

- 20030219 :      Article (False official statements, on or about 20 January 2003, made false verbal statement to GySgt H___ pertaining to the circumstances of the injuries sustained by his wife)
         Article (Assault, on or about 19 January 2003, was arrested for physically assaulting his wife, as attested by the Clayton County Police report)
         Awarded: Suspended:

SCM:     SPCM:    CC:

CIVIL ARREST:

- 20030119 :       Charges: N ot Found in Record (Extracted from NJP dated 20030219)

Retention Warning Counseling :

- 20020930 :       For “failure to conduct personal affairs in a manner expected of a Marine of your rank” and demonstrated immaturity and a seeming inability to control domestic issues.


- 20030312 :       For pattern of misconduct; 2 NJPs for violations of Articles 86, 107, and 128.

- 20030410 :       For “violating restriction by allowing your spouse, who was also on restriction, to visit your room which resulted in her assaulting you” and for violating the conditions of a protective order issued by the commanding officer.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ CONTINUOUS HONO RABLE ACTIVE SERVICE FROM 990921 UNTIL 021003 ”
         “ ”
        
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 P1900.16F), 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 is worthy of consideration for an upgrade .
2.       The Applicant contends his two non-judicial punishments ( NJPs ) were unjust , and he was denied due process when his command denied his right to demand trial by court - martial in lieu of NJP .

Decision

 Date: 20 1 3 0403            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 warnings and NJPs f or o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave), Article 107 ( False official statements, 2 s pecifications), and Article 128 ( Assault). 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 counsel and submit a written statement, but waived his right to request an administrative board .

: (Decisional) ( ) . The Applicant contends his in-service conduct, as evidenced by a Navy and Marine Corps Achievement Medal, a Good Conduct Medal, and five character reference letters , is worthy of consideration for an upgrade . The Applicant received an Honorable discharge for his first enlistment from September 1999 until October 2002. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he received two retention counselings and was found guilty of violating multiple UCMJ articles at two NJPs. 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.

: (Decisional) ( ) . The Applicant contends his two NJPs were unjust , and he was denied due process when his command denied his right to demand trial by court - martial in lieu of NJP . Service members do not have a right to appear before a court-martial. While they may refuse NJP and request a trial by court-martial, the command is not mandated to refer the charges to a court-martial. T he Applicant’s record shows that he accepted NJP on 14 November 2002 and 19 February 2003. The Applicant was charged on 4 April 200 3 with two violation s of UCMJ Article 92 at which the Applicant exercised his right to refuse NJP and request a trial by court-martial. His command determined not to refer the charges to a court-martial and instead opted to process the Applicant for administrative separation. When notified of administrative separation proceedings, the Applicant exercised his right to consult with counsel but waived his right to appear before an Administrative Separation Board. If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. The NDRB determined the Applicant was afforded all applicable rights and was not denied due process. His discharge was proper. 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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