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USMC | DRB | 2013_Marine | MD1301515
Original file (MD1301515.rtf) Auto-classification: Denied

ex-, USMCR
Current Discharge and Applicant’s Request
Application Received: 20130702
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:         USMCR (DEP)       19860314 - 198 6 051 2     Active:   19860513 - 19890513

Period of Service Under Review:
 Date of Appointment : 19890531     Age:
Years Contracted : Indefinite
Date of Discharge: 20060307       Highest Rank : MAJ
Length of Service: 16 Years Months 08 D ays
Education Level:         AFQT: 89
Officer’s Fitness reports: Available
Awards and Decorations ( per DD 214):      AFRM (w/ “ M” Device Bronze Hour Glass) ( 2 )

Periods of UA / CONF :

NJP:

- 20051101 :      Article 133 (Conduct unbecoming an o fficer , 2 specifications )
         Awarded: Punitive Letter of Reprimand Suspended:

SCM:     SPCM:    CC:      Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20091022
NDRB Documentary Review Docket Number:   MD09-01206
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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:        





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

Applicant’s Issues

 1.       The Applicant contends he was denied due process when he was denied the full 10 days to respond to the Board of Inquiry ( BOI ) proceedings as se t forth in SECNAVINST 1920.6C.
2.       The Applicant contends his misconduct was isolated and is not indicative of his 19 plus years of honorable service.
3.       The Applicant contends his po st-service conduct warrants consideration for an upgrade in his discharge characterization.

Decision

 Date: 20 1 4 032 4            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall UNACCEPTABLE 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. T he 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 for o f the Uniform Code of Military Justice (UCMJ): Article 133 ( Conduct unbecoming an officer, 2 specifications). Based on the offenses committed by the Applicant , he was directed to show cause for retention before a BOI , which found that the allegations against the Applicant were substantiated by the preponderance of evidence and recommended he be administratively processed for separation Under Other Than Honorable Conditions. Commanding General, 2d Marine Division , Commanding General, II Marine Expeditionary Force , and Deputy Commandant for Manpower and Reserve Affairs (DC (M&RA)) concurred with the findings and recommendations of the BOI. The Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s separation Under Other Than Honorable Condition s on 07 March 2006.

: (Decisional) ( ) . The Applicant contends he was denied due process when he was denied the full 10 days to respond to the BOI as set forth in SECNAVINST 1920.6C. In accordance with SECNAVINST 1920.6C, respondents shall be provided the BOI record of proceedings and allotted 10 days to submit written comments to DC (M&RA). Marine Corps Order P5800.16A (LEGADMINMAN) clarifies and extends the 10 day deadline by providing the respondent 5 days to make corrections to the BOI tr anscript and then an additional 5 days to submit matters upon service of the final BOI report. On 10 February 2006 , c ounsel for the Applicant received the BOI record of proceedings and submitted no deficiencies aside from typographical errors. Following the guidelines set forth in SECNAVINST 1920.6C alone, the Applicant would have been re quired to submit his rebuttal no later than 20 February 2006. The Applicant ’s deadline to submit matters on the BOI record of proceedings expired on 01 March 2006. The Applicant , after being denied a deadline extension, did submit , on 06 March 2006, matters in rebuttal to the BOI report that were addressed by DC ( M&RA). The NDRB determined the Applicant was not denied due process and that he was afforded all rights in accordance with appropriate regulations. Furthermore, the Applicant did not provide substantial evidence or rationale to support his contention that his case was negatively impacted by not receiving additional time to submit his rebuttal to the BOI report. Relief denied.

: (Decisional) ( ) . The Applicant contends his misconduct was isolated and is not indicative of his 19 plus years of honorable servi ce. The Applicant was administratively separated an d not separated upon fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and condu ct during the current term of service , 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, 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, and the awarded characterization of service was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade in his discharge characterization. The NDRB considers 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. In addition to his testimony, the Applicant provided two post-service character references. The Applicant could have provided 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 Board determined t he characterization of service received was appropriate considering the UCMJ violations. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony, 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 is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . The Applicant is directed to the Addendum for additional information.
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 .


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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