Upgrade.Vet

USMC | DRB | 2014_Marine | MD1400264

Original file (MD1400264.rtf) Auto-classification: Denied

ex-WO, USMC

Current Discharge and Applicant’s Request

Application Received: 20131209

Characterization of Service Received:

Narrative Reason for Discharge: (OTHER)

Authority for Discharge: SECNAVINST 1920.6C

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: SECRETARIAL PLENARY AUTHORITY

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19980121 - 19980222     Active:          19980223 - 20011011
                                             20011012 - 20051208
                                             20051209 - 20090105
                                             20090106 - 20110131

Period of Service Under Review:
Date of Appointment : 20110201    Age at Enlistment:
Years Contracted : Indefinite
Date of Discharge: 20121115      H ighest Rank: WARRANT OFFICER
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 72
MOS: 0210/0916
Officer’s Fitness R eports:

Awards and Decorations (per DD 214):      Rifle (4) Pistol (4) (3) ( 2 ) (4) (3) (3) CoC (7) MM CoA (3) LoA (4)

Periods of UA / CONF :

NJP:     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 March 1997.

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 there are multiple errors on his DD Form 214 relating to his discharge such as the type of separation received and rank and pay grade.
2.       The Applicant would like to re-enlist.
3.       The Applicant contends he was innocent of the charge of adultery and was denied due process to prove his innocence at a court-martial, a “Show Cause” board, or a request mast.
4.       The Applicant contends his discharge did not take into consideration nearly 15 years of service and lacked actual evidence of adultery.
5.       The Applicant contends he should have been allowed to undergo a medical discharge evaluation.

Decision

Date: 20 1 4 0612          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall (OTHER).

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 no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant provided a copy of a non-punitive letter of caution for allegations of fraternization, adultery, and mental instability issued to him by his command. Command investigations substantiated that the Applicant had fraternized with a Marine Staff Sergeant in his occupational specialty and had an unduly familiar relationship with the Staff Sergeant’s wife even after a Military Protective Order (MPO) had been issued requiring him to cease communications with the Staff Sergeant and his family . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request a review by the Assistant Secretary of the Navy ( Manpower and Reserve Affairs ) .

: (Nondecisional) The Applicant contends there are multiple errors on his DD Form 214 such as the type of separation received and rank and pay grade. In reviewing discharges, the NDRB may identify administrative errors on the Applicant’s DD Form 214 that fall within the scope of the NDRB’s responsibility to examine the propriety and equity of a discharge. If errors are identified, the NDRB will make recommendations to Headquarters Marine Corps for correction. However, the NDRB can only make recommendations for administrative corrections and has no ability to track or verify whether change recommendations are completed. It is the responsibility of the former service member to petition Headquarters Marine Corps for correction s to ensure changes not related to the propriety and equity of a discharge are incorporated into the record.

: (Nondecisional) The Applicant would like to re-enlist. 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 innocent of the charge of adultery and was denied due process to prove his innocence at a court-martial, a “Show Cause” board, or a request mast. The record of evidence shows the Applicant was the subject of an initial command investigation that resulted in his being issued both a non-punitive letter of caution and a n MPO. A s ubsequent command investigation was initiated as a result of substantiated accusations that the A pplicant was in violation of the terms of his MPO. When confronted with charges related to this investigation, the A pplicant refused both non-judicial punishment and court-martial as documented on the “Acknowledgment of Notification of Intent to Hold Article 15 Hearing” he signed on 12 March 2012. He was next notified of his command’s intent to separate him on 15 March 2012 and elected to submit a statement to the Secretary of the Navy in rebuttal and not tender a resignation in lieu of separation processing . He subsequently conferred with military counsel on 26 March 2012.

Due to the Applicant’s status as a probationary warrant officer, he was not entitled to a “Show Cause” board to present his case for retention. However, he was afforded the opportunity to provide a written statement to the Secretary of the Navy presenting his case and arguing for his retention. In prepar ing this correspondence, the Applicant was granted a 17 day extension for submission , and his correspondence was reviewed and routed up the chain of command to the Assistant Secretary of the Navy ( Manpower and Reserve Affairs ) . The Assistant Secretary of the Navy ( Manpower and Reserve Affairs ) , acting under the authority granted to him by the Secretary of the Navy, approved the recommendation for separation presented by the Applicant’s command.

The Applicant provided evidence of multiple requests mast applications during t his period of service. All request mast applications were submitted after the Applicant’s administrative separation processing had formally begun. As stated in the formal responses, these request masts concerned matters relating to his involuntary separation and were not actionable either due to the fact that the involuntary separation proceedings were not complete or that his request was outside the scope of the Commanding General he submitted his request s to. After a complete review of the records and the Applicant’s arguments, the NDRB concluded the Applicant ’s discharge was proper and equitable. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his discharge did not take into consideration nearly 15 years of service and lacked actual evidence of adultery. The record of evidence shows the Applicant was separated for substandard performance of duty and misconduct relating to his violation of a MPO issued after being awarded a non-punitive letter of caution for fraternization with a Marine Staff Sergeant in his occupational specialty and an unduly familiar relationship with the Staff Sergeant’s wife . Adultery is not one of the charges specified in the Applicant’s administr ative separation notification. Violation of the Applicant’s MPO falls under UCMJ Article 92 (Failure to obey an order or regulation), which is considered a serious offense per Appendix 12 of the Manual for Courts-Martial. S ervicemembers 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 statements and documents provided by the Applicant do not refute the presumption of regularity in this cas e.

The Applicant completed his first four enlistment period s and received an Honorable characterization for each of these enlistments. E ach period of enlistment or service obligation is an independent period , and characterization of service is determined for that specific term of service . Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment or service obligation and is not necessarily dependent upon the narrative reason for separation. The Applicant was administratively separated and not separated upon the fulfillment of his service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the service obligation , 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’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.

5 : (Decisional) ( ) . The Applicant contends he should have been allowed to undergo a medical discharge evaluation. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a me dical board for the Applicant. In the event a medical separation had been considered or recommended, a ppropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. 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 (OTHER) . 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 | 2014_Marine | MD1400264

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