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USMC | DRB | 2013_Marine | MD1300631
Original file (MD1300631.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130115
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)       20011012 - 20020425     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20020426     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030415      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 87
MOS: 0311
Proficiency/Conduct M arks (# of occasions): /    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Period of CONF :

NJP:

- 20021015 :      Article (Absence without leave , 20020930 - 20021010, 10 days)
         Article 92 (Failure to obey order or regulation, derelict in the performance of duty, failed to report an alleged hazing incident)
         Article 107 (False official statement, he was being hazed)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20021224 :      For deserting you r post for a period of 32 days (20021117-20021219) , violating A rticle 85 of the UCMJ.

- 20021224 :      For Company NJP for violating A rticle s 86, 92 , and 107 of the UCMJ. An administrative separation package has been initiated.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ ”
         “ (10) 20020930-20021010, (32) 20021117-20021219 ”
        
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 seeks a change in his RE-code to reenlist into the Armed Forces .
2.       The Applicant contends his pre - and post - service conduct warrant consideration for an upgrade .
3.       The Applicant contends his discharge was based on an isolated incident .
4.       The Applicant contends his disciplinary problems were the result of stress caused by hazing.

Decision

Date: 20 1 3 1003            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 warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 30 September 2002 - 10 October 2002, 10 days ), Article 92 ( Failure to obey order or regulation , derelict in the performance of duty, failed to report an alleged hazing incident ), and Article 107 ( False official statement , did, on or about 1130, 10 October 2002, with intent to deceive, make a statement that he “was being hazed, and he was scared,” an official statement, to wit: 1stSgt _____, which was false in that SNM retracted his statement, and was then known by the said PFC to be false ). The record shows the Applicant was facing a Special Court-Martial for violation of UCMJ Article 85 (Desertion, 17 November 2002 - 19 December 2002, 32 days) . The Applicant, however, was not taken to a Special Court-Martial but was administratively separated after requesting separation in lieu of trial by court-martial (SILT). 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 offense(s) 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 Marine Corps accepted his request and discharged him Under Other Than Honorable Conditions.

: (Nondecisional) The Applicant seeks a change in his RE-code to reenlist into the Armed Forces. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends his pre - and post - service conduct warrant consideration for an upgrade . The NDRB considers outstanding pre- and 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. The Applicant provided two pre-service certificates for superior performance. Additionally, t he Applicant provided a personal statement and two post -service em ployment commendations. The Applicant could have provided additional documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. The NDRB determined the characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.
: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident . Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of Article 85 is one such offense that may result in processing for administrative separation regardless of grade , performance, or time in service. However, prior to facing a Special Court-Martial for violation of UCMJ Article 85, the Applicant had an NJP and two retention warnings. The command ultimately did not pursue a punitive discharge but opted instead for the more lenient administrative discharge as part of the Applicant’s petition for separation in lieu of trial by court-martial . Relief denied.

4 : (Decisional) ( ) . The Applicant contends his disciplinary problems were the result of stress caused by hazing . Most servicemembers serve honorably and therefore earn their Honorable or General discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who may have been exposed to hazing during their enlistment, such as more senior members of the chain of command, request mast, the Navy Chaplain, or Medical or Mental Health professionals. The NDRB determined the Applicant’s hazing allegations were not mitigating factors in his misconduct. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his misconduct was the result of hazing. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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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