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USMC | DRB | 2012_Marine | MD1201575
Original file (MD1201575.rtf) Auto-classification: Denied
RECONSIDERATION
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120710
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)       20080103 - 20080210     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080211     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20091209      H ighest Rank:
Length of Service : Y ea r M on ths 06 D a ys
Education Level:        AFQT: 74
MOS: 5831
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM

Periods of UA / CONF : UA: 20090709 - 20090901, 55 days. CONF:

NJP:             SCM:             SPCM:            CC:

Retention Warning Counseling :

- 20090609 :       For your assignment to the body composition program per Marine Corps Body Composition Program, MCO 6110.3 and MarAdmin 0145/09. During the semi-annual weigh-in conducted by the Battalion S-3 on 20090526, your body composition was found to be out of regulations. Your weight was 228 and your body fat was measured to be 19%, your height is 74 inches and your maximum allowable weight is 214 lbs. You are currently 14 lbs overweight and 1% above the allowable body fat percentage.

- 20090609 :       For violation of Article 86 of the UCMJ, Unauthorized Absence. Specifically, SNM was ordered to muster at the Quantico Base Brig at 0530 on 20090608 for Physical Training, his appointed place of duty. SNM failed to arrive at his appointed place of duty and failed to notify his chain of command of his whereabouts.

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 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .
C . 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 h e was under emotional distress, was not fully informed of his rights, felt intimidated on a daily basis by an AO2, and contemplated suicide.
Decision

Date: 20 1 3 0502            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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and no misconduct resulting in non-judicial punishment or court-martial. However, the Applicant’s record of service included a n extended period of unauthorized absence totaling 55 days, which is a violation of Uniform Code of Military Justice Article 86 (Absence without leave) and Article 85 (Desertion) . The Applicant’s separation package was not in his records, however, the record shows the Applicant ’s command referred charges to a Special Court-Martial for his extended period of unauthorized absence. The Applicant subsequently submitted a request to be separated in lieu of trial by court-martial (SILT), the Marine Corps accepted this request, and the Applicant was discharged Under Other Than Honorable Conditions for Separation In Lieu of Trial by Court-Martial.

 : (Decisional) ( ) . The Applicant contends he was under emotional distress, was not fully informed of his rights, felt intimidated on a daily basis by an AO2, and contemplated suicide. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant submitted a letter from a current Marine corporal who used to work in the same section with the Applicant during the harassment by AO2, a letter from an Army specialist who met the Applicant through mutual friends, and an unsigned letter, dated 29 July 2009, from “Your Marines,” detailing the unprofessional, illegal, racist, and harsh conduct of the AO2 who harassed the Applicant. According to the Applicant, because of this relentless harassment, he went UA for 55 days. Upon his return, charges were referred against him to a Special Court-Martial. However, instead of facing charges at a court-martial, he submitted a request for separation in lieu of trial by court-martial and admitted guilt to going UA . Per regulations, to attain approval for a SILT request, servicemembers must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand the elements of the offenses for which they were charged, and they must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment. The Applicant had the right to appear before a court-martial to present his case, he was fully informed of these rights, met with a qualified counsel, and requested, in writing, to be separated Under Other Than Honorable Conditions after he admitted his guilt. After a complete review of the records, to include the three letters from a friend and fellow Marines, t he 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 shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for 15 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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