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USMC | DRB | 2012_Marine | MD1201873
Original file (MD1201873.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)       20041025 - 20050731     Active:            20050801 - 20080315 HON

Period of Service Under Review:
Date of Current Enlistment: 20080316     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090815      H ighest Rank:
Length of Service : Y ea r M on ths 00 D a y
Education Level:        AFQT: 67
MOS: 1812
Fitness R eports:

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

Periods of UA :

NJP:    SCM:    CC:

SPCM:

- 20090402 :       Art icle 120 (Rape, sexual assault, and ot her sexual misconduct, to wit: carnal knowledge with ______, a person who attained the age of 12 but was under the age of 16)
         Sentence : (20090402 - 20090413, 12 days)

Retention Warning Counseling :

- 20090406 :       You were found guilty at a Special Court-Martial on 20090402, Article 120 (Carnal Knowledge).

Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:

          “ ”

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 120 .



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

Applicant’s Issues

 1.       The Applicant contends his discharge is inequitable , because it was based on an isolated incident that did not result in a punitive discharge at a Special Court-Martial after 44 months of honorable service .
 2.       The Applicant contends his discharge is inequitable , because it was based on an interpretation of civil law.
3.       The Applicant contends his commanding officer only gave him an Under Other Than Honorable Conditions discharge because of the potential of having to register as a sex offender, which is no longer required.
4.       The Applicant contends he was allowed to re-enlist even though his CO had assigned him to a Special Court-Martial.

Decision

Date: 20 1 3 0606            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 sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warning and for of the UCMJ: Article 120 (Rape, sexual assault, and other sexual misconduct, to wit: carnal knowledge with ______, a person who attained the age of 12 but was under the age of 16) . Based on the offense committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel, but waived his rights to 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 that did not result in a punitive discharge at a Special Court-Martial after 44 months of honorable service. The Applicant received an Honorable discharge for his first enlistment from August 2005 to March 2008. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he was convicted at a Special Court-Martial of violating UCMJ Article 120. The Applicant is correct in that a punitive discharge (i.e., Bad Conduct ) was not part of the sentence. After serving confinement and being reduced in rank, he was returned to his unit, which initiated administrative separation processing for Misconduct (Serious Offense). Per the Marine Corps Separation and Retirement Manual, this is authorized because the administrative discharge process is a distinctly different process from a punitive proceeding such as a court-martial. However, to obtain approval for an administrative discharge based upon misconduct that did not result in a punitive discharge at a Special or General Court-Martial, the Separation Authority is the Secretary of the Navy, who has delegated that authority down to the Deputy Commandant of the Marine Corps for Manpower and Reserve Affairs. On 20 July 2009, the Deputy Commandant approved the administrative discharge of the Applicant and ordered that he be discharged Under Other Than Honorable Conditions for Misconduct (Serious Offense). After a complete review of the records, the NDRB determined the Applicant’s separation proceedings were warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on an interpretation of civil law . A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. The Applicant was found guilty at a Special Court-Martial for violati ng UCMJ Article 120. The Applicant was provided the opportunity to present his case before an administrative board, but he waived that right. His discharge was proper and equitable. Relief denied.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his commanding officer only gave him an Under Other Than Honorable Conditions discharge because of the potential of having to register as a sex offender, which is no longer required. The Applicant provided no evidence to back up this contention. However, this contention does not make sense, because the Applicant committed a serious offense as defined in Appendix 12 of the Manual for Courts-Martial and more than warranted an Under Other Than Honorable Conditions characterization of service. After his conviction at a Special Court-Martial, his command determined he was no longer fit for service and processed him for administrative separation, which was proper and equitable. Relief denied.

Issue 4: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends he was allowed to re-enlist even though his CO had assigned him to a Special Court-Martial. If this did occur, it has no bearing on the propriety or equity of his separation proceedings. After being found guilty at court-martial, his command properly processed him for separation due to Commission of a Serious Offense, and he equitably received an Under Other Than Honorable Conditions characterization of service like other Marines with similar misconduct. 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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