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USMC | DRB | 2012_Marine | MD1201589
Original file (MD1201589.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120711
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)       20080909 - 20081130     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20081201     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20111209      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 09 D a y ( s )
Education Level:        AFQT: 92
MOS: 0261
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20100209 :       Article (Assault)
         Awarded: Suspended:

SCM:     SPCM:    CC:

CIVIL ARREST:

- 20100123 :       Charges: Battery d omestic a ssault against your wife .

- 20110710 :       Charges: Assault with a deadly weapon on person and exhibiting a deadly w eapon other than a firearm against your wife.
Retention Warning Counseling :

- 20100209 :       For battalion level NJP for Article 128 - Assault on or about 20100123, you were arrested for battery/domestic violence in Las Vegas, NV against your spouse.









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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 128 (Assault) .


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

Applicant’s Issues

 1.       The Applicant contends his notification of separation proceedings allowed for a response, however, the notification was not dated.
2.       The Applicant contends he is innocent.
3 .       The Applicant contends his in-service character references warrant an upgrade to Honorable.

Decision

 Date: 20 1 3 0509            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 Applicant’s record of service included 6105 counseling warning , for o f the Uniform Code of Military Justice (UCMJ): Article (Assault) , and two civilian arrests ( Battery domestic assault against your wife and Assault with a deadly weapon on person and exhibiting a deadly weapon other than a firearm against your wife ) . Based on the offense s committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review . However, the Applicant has a separation code of GKQ1 on his DD Form 214, which indicates he had an administrative board, and documents submitte d by the Applicant support that he had an administrative board. The Applicant was notified of separation proceedings for Misconduct ( Pattern of Misconduct ) and Misconduct (S erious Offense ) .

: (Decisional) ( ) . The Applicant contends his notification of separation proceedings allowed for a response, however, the notification was not dated. The Applicant did not elaborate on how he was adversely affected by the document missing a date. The NDRB did not have the Applicant’s complete administrative separation package to determine which rights the A pplicant exercised or waived. However, t he Applicant’s separation code and documents he provided support that he exercised his right to an administrative board , which indicate that the Applicant was afforded his entitled rights. Further, the three character references provided by the Applicant appear to be directed to his administrative board , which is an indication that the Applicant had a reasonable amount of time to prepare for his administrative board. The NDRB determined a missing date on the notification of separation proceedings did not materially affect his separation processing. A fter reviewing the Applicant’s issues, supporting documents , and the evidence of record, the NDRB discerned no impropriety or inequity in the separation process, and the Applicant’s separation for Misconduct (Serious Offense) was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends he is innocent. The Applicant provide d documentation from Family Programs annotating that his incident on 10 June 2011 did not meet the criteria for physical abuse, service member to spouse. The 10 June 2011 date is different from his two arrests dates listed in the Applicant’s notification letter , which annotates he was arrested on 23 January 2010 and 10 July 2011 . The Applicant also provided a notarized statement from his wife dated 10 August 2011 stating she was not assaulted by the Applicant on 10 July 2011 with any weapon, nor did he threaten to use any weapon. Finally, the Applicant provided a court document signed 09 May 2012 setting aside the plea of guilty/conviction and dismissing the charge(s) from 10 July 2011. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and pled guilty at NJP for his first documented Article 128 violation in February 2009 . If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. In addition, the Applicant’s separation code and documents he submitte d support that he had an administrative board . During his administrative separation board , he would have had an opportunity to mount a

defense against the charges. Even with the dismissed charge (s) for the 10 July 2011 incident, he met the requirements for separation for Misconduct (Serious Offense) with the Article 128 violation from February 2009. The Applicant’s discharge was proper and equitable. Relief denied.
: (Decisional) ( ) . The Applicant contends his in-service character references warrant an upgrade to Honorable. The three character references provided by the Applicant appear to have been written to his administrative separation board , and it is presumed the administrative board and Separati on Authority had access to these character references prior to their determinations. The Separation Authority makes the final determination as to the characterization of service and determined to discharge the Applicant Under Other Than Honorable Conditions. 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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