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USMC | DRB | 2013_Marine | MD1301352
Original file (MD1301352.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130606
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)       20090709 - 20090920     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090921     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20130323      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level:        AFQT: 76
MOS: 6092 / 6018
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol ACM (2) LOA (7) CoC (3)

Periods of UA / CONF :

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20100107 :       For Article 92 (Failure to obey order or regulation), specifically , unlawfully operating a motor vehic le without a driver’s license

Administrative Corrections to the Applicant’s DD 214

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

          “03 06 03 ”
         “ ”
         “ MISCONDUCT ”
        
The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, 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 :        


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 he was separated improperly due to not being tried at a Special Court-Martial for his alleged offenses and not being able to mount an effective defense during his two A dministrative S eparation B oards due to the threat of then being prosecuted at a subsequent Special Court-Martial .
3.       The Applicant contends he is innocent of the charges against him .

Decision

Date: 20 1 4 013 0            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 . Additionally , a 21 July 2011 Criminal Investigation Division investigation revealed evidence of the Applicant’s involvement in credit card theft. Initially, charges were referred to a Special Court-Martial for violation of Uniform Code of Military Justice (UCMJ) Article 121 (Larceny), however, the charges were eventually dismissed. The Applicant’s command then notified him of administrative separation proceedings using the administrative board procedure. When notified of a dministrative separation processing , the Applicant exercised his rights to consult with counsel and request an Administrative Separation Board but waived his right to submit a written statement to the Separation Authority. After two Administrative Separation Boards were found to possess invalidating legal issues , his command renotified him of administrative separation proceedings using the notification procedure. The Applicant exercis ed rights to consult with a qualified counsel, submit a written statement, and request a General Court-Mar tial Convening Authority review . After a review by the Judge Advocate General at 2 nd Marine Aircraft Wing (MAW), the Separation Authority (Commander, 2 nd MAW) determined the Applicant warranted separation for commission of a serious offense and ordered his discharge with a General (Under Honorable Conditions) characterization of service for Misconduct (Serious Offense).

: (Nondecisional) The Applicant seeks a change in his RE-code t o 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 he was separated improperly due to not being tried at a Special Court-Martial for his alleged offenses and not being able to mount an effective defense during his two A dministrative S eparation B oards due to the threat of then being prosecuted at a subsequent Special Court-Martial . The NDRB noted the Applicant was scheduled for trial at a Special Court-Martial for four specifications of violation of UCMJ Article 121 (Larceny and wrongful appropriation). The basis for this was a 21 July 2011 Criminal Investigation Division investigation that revealed evidence of the Applicant’s involvement in credit card theft. The Applicant fully exercised his rights in the preparation of his S pecial Court-Martial proceedings and requested three continuances, two of which were approved, to delay the trial date. Additionally , the Applicant requested the testimony of an expert witness to be furnished at the government ’s expense. The specific expert requested was found to be both prohibitively expensive and unnecessary given the facts of the case by the Applicant’s command. However, two qualified and affordable substitute experts were nominated to support the Applicant’s defense. Neither substitute was acceptable to the Applicant’s defense. Faced with continued conflict

between defense and trial counsel as to adequate expert witness availability , the Applicant’s command ultimately decided to dismiss the Special Court-Martial c harges and instead pursue an a dministrative s eparation for Misconduct (Serious Offense) . In accordance with the Marine Corps Separation and Retirement Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. The Applicant’s command notified him of separation proceedings via the administrative board procedure, and the Applicant fully exercised his rights. T wo Administrative Separation Board s were conducted , and b oth were found to possess invalidating legal issues. The Applicant’s command then decided to separate him via the notification procedure. Pursuant to service regulations, a servicemember is not entitled to an Administrative Separation Board unless the least favorable characterization of service is Under Other Than Honorable Conditions or the servicemember has at least six years of active duty service. Since the Applicant had less than six years of service at the time of discharge and was recommended to receive a General (Under Honorable Conditions) characterization of service, he was not entitled to a n Administrative Separation Board. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing. Relief denied.

: (Decisional) ( ) . The Applicant contends he is innocent of the charges against him . The Applicant was administratively and not punitively discharged. 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 the evidence cited in the 21 July 2011 Criminal Investigation Division investigation was not a valid basis to administratively separate the Applicant for commission of a serious offense. T he NDRB found the evidence provided by the Applicant to be inconclusive. 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.

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16 F ), 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 92 and 121 .


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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