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USMC | DRB | 2012_Marine | MD1201871
Original file (MD1201871.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120911
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)       20010517 - 20010723     Active:            20010724 - 20041005 HON
                                    USMC     20041006 - 200811 13 HON
Period of Service Under Review:
Date of Current Enlistment: 20081114     Age at Enlistment:
Period of E nlistment : Years 9 Months
Date of Discharge: 20111130      H ighest Rank:
Length of Service : Y ea rs M on th 17 D a ys
Education Level:        AFQT: 68
MOS: 2847/2862
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (4) Pistol (3) AAM ( 2 ) (5) LoA (3)

Periods of UA / CONF :

NJP:     SPCM:   CC:

SCM:

- 20110615 :       Art icle (False official statements, to wit: “I am in the process of working things out with my wife,” or words to the effect, and, “I have every intention of moving to CamLej with them,” or words to that effect, which statement was totally false, and was then known by the SNM to be so false)
         Art icle 132 ( Frauds against the United States , 2 specifications )
         Specification 1: Present for approval and payment a claim against the United States in the amount of $7,621.81 for permanent change of station travel with 4 dependents, which claim was false and fraudulent in the amount of $7,621.81 in that there were no legal dependents, and was then known by the SNM to be false and fraudulent.
         Specification 2: For the purpose of obtaining the approval of a claim against the United States in the amount of $1,200.00, did, at or near CamLej, NC on an unknown date, make and use a certain writing, to wit: a rental application, which said writing, as he, that SNM, then knew, contained a statement that ma d e it appear he was married to a woman named ______ and had (4) children, which statement was false and fraudulent in that he was not married to a woman named ______ or had (4) children, and was then known by the SNM to be false and fraudulent.
          Art icle ( General A rticle - C ohabitation, wrongful, to wit: from between on or about 20100830 and on or about 20110201, with Ms. ______, a woman not his wife)
         Sentence : RIR E-5





Retention Warning Counseling :

- 20110415 :       For violation of Article 90, willingly disobeying a superior commissioned officer; violation of Article 134. Specifically, you were ordered not to have unsupervised contact with ______ by your Company Commander. You disobeyed this order which resulted in the involvement of the military police, and displayed poor judgment by going to her house at 0200.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrati ve error s on the original DD Form 214:

          “ CONTINUOUS HONO RABLE ACTIVE SERVICE FROM 010724 UNTIL 081113 ”
         “ 10 04 07 ”

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 P1900.16E), 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 s 107 and 132 .


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

Applicant’s Issues

 1.       The Applicant contends his discharge was based on an isolated incident in 124 months of service .

Decision

Date : 20 1 3 0613            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 warning and for of the UCMJ: Article (False official statements, to wit: “I am in the process of working things out with my wife,” or words to the effect, and, “I have every intention of moving to CamLej with them,” or words to that effect, which statement was totally false, and was then known by the SNM to be so false), Article 132 (Frauds against the United States, 2 specifications: [1] Present for approval and payment a claim against the United States in the amount of $7,621.81 for permanent change of station travel with 4 dependents, which claim was false and fraudulent in the amount of $7,621.81 in that there were no legal dependents, and was then known by the SNM to be false and fraudulent; [2] For the purpose of obtaining the approval of a claim against the United States in the amount of $1,200.00, did, at or near CamLej, NC on an unknown date, make and use a certain writing, to wit: a rental application, which said writing, as he, that SNM, then knew, contained a statement that make it appear he was married to a woman named ______ and had (4) children, which statement was false and fraudulent in that he was not married to a woman named ______ or had (4) children, and was then known by the SNM to be false and fraudulent), and Article (General A rticle - c ohabitation, wrongful, to wit: from between on or about 20100830 and on or about 20110201, with Ms. ______, a woman not his wife). 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 waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on an isolated incident in 124 months of service. The Applicant received Honorable discharges for his first two enlistments from July 2001 to November 2008. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During the Applicant’s third enlistment, he received a retention warning and was found guilty at a Summary Court-Martial of violating UCMJ Articles 107, 132, and 134. These serious offenses could have resulted in a punitive discharge (i.e., Bad Conduct) as the result of a Special Court-Martial, however, his command leniently allowed the Applicant to be administratively discharged. 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, and after reviewing the substantial documentation and DVD submitted by the Applicant, 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 in his current enlistment , and the awarded characterization of service was warranted , proper, and equitable . 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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