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USMC | DRB | 2012_Marine | MD1201872

Original file (MD1201872.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120911

Characterization of Service Received:

Narrative Reason for Discharge: UNACCEPTABLE CONDUCT

Authority for Discharge: SECNAVINST 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS)

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service
Prior Service:
Inactive: US MCR ( J )      20060413 - 20060708      Active: (OCAN) 20060709 - 20060818
                  (OCAN) 20070708 - 20070817
Period of Service Under Review:
Date of Appointment : 20080823     Age:
Years Contracted : Indefinite
Date of Discharge: 20 111007       Highest Rank : 1 ^ST LT
Length of Service: 0 3 Year(s) Month(s) 16 D ay(s)
Education Level:         AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      Rifle ( 2 ) Pistol ( 3 )

Periods of UA / CONF :

NJP:

- 20101006 :      [Extracted from Commandant of the Marine Corps Report of the Board of Inquiry dated 20110815] Article (Larceny and wrongful appropriation)
         Article 133 ( Conduct unbecoming an officer and a gentleman)
         Awarded: Punitive letter of reprimand Suspended :

SCM:     SPCM:    CC:      Retention Warning Counseling :

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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.

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 he is innocent and was never convicted .
2.       The Applicant contends his Board of Inquiry (BOI) was improperly influenced by the Assistant Division Comman der’s Fitness Report comments.
3.       The Applicant contends it is inequitable to be separated for U nacceptable C onduct given his record, performance, and recommendations.
4.       The Applicant contends it is inequitable to be separated for U nacceptable C onduct while receiving an Honorable characterization.

Decision

Date: 20 1 3 0314          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall U NACCEPTABLE CONDUCT .

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 for o f the Uniform Code of Military Justice (UCMJ): Article (Larceny and wrongful appropriation) and Article 133 (Conduct unbecoming an officer and a gentleman) . When ordered to show cause for retention, t he Applicant e xercised his rights to a Board of Inquiry ( BOI ) and to be r epresented by qualified counsel. The BOI found that the Applicant demonstrated Substandard Performance of Duty and committed misconduct of a military or civilian offense that , if prosecuted under the UCMJ, could be punished by confinement for six months or more - Article (Larceny and wrongful appropriation ). Further , the BOI voted 2-1 to recommend that the Applicant be separated with a characterization of Honorable . The NDRB found no record of the Applicant exercising his right to submit a statement in rebuttal to the BOI findings and recommendations.

: (Decisional) ( ) . The Applicant contends he is innocent and was never convicted . The decision to administratively separate a servicemember is made independently of the imposition of NJP or court-martial. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial , and a BOI found he had committed misconduct (Article 121). 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. Instead, the Applicant pled guilty at NJP , the strongest form of guilt, to violating Articles 121 and 133. The Applicant submitted no evidence to support his contention, therefore, the NDRB rel ied upon the presumption of regularity in the conduct of Government affairs. Relief denied.

: (Decisional) ( ) . The Applicant contends his BOI was improperly influenced by t he Assistant Division Commander’s Fitness Report comments. The NDRB found no record of the Applicant exercising his right to submit a statement in rebuttal to the BOI findings and recommendations. The Applicant’s statement in his DD F orm 293 contends that the decision to bring up this impropriety to the Assistant Division Commander was decided not to be the best course of action and the Co mmanding General, II MEF “would most likely see the discourse in the [BOI’s] decision. ” The Applicant did not submit any documentation to rebut any presumption of regularity in gov ernmental affairs. After a thorough review of the BOI proceedings, the NDRB discerned no improprieties and determined he was afforded all of his administrative rights pursuant to the separation process. Relief denied.

: (Decisional) ( ) . The Applicant contends that it is inequitable to be separated for U nacceptable C onduct given his record, performance, and recommendations. The Applicant was administratively separated and not separated upon expiration of his fulfillment of service obligation. Based on the Applicant’s guilty plea to violating Articles 121 and 133, the BOI finding that the Applicant had committed misconduct and his battalion CO’s comments that the Applicant’s actions were contrary to the ethos of a Marine officer, the NDRB determined the narrative reason was appropriate. Relief denied.

4: (Decisional) ( ) . The Applicant contends that it is inequitable to be separated for U nacceptable C onduct while receiving an Honorable characterization. The NDRB found that the documentation and statements provided for review do not refute the presumption that the Applicant had unacceptable conduct. No other narrative reason other than U nacceptable C onduct more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. The NDRB is not authorized to change the characterization of service to a more unfavorable level and so cannot change the Honorable. 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 UNACCEPTABLE CONDUCT . 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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USMC | DRB | 2012_Marine | MD1201872

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