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USMC | DRB | 2014_Marine | MD1400454
Original file (MD1400454.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140113
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)       19991208 - 20000807     Active:   20000808 - 20040 816 HON
                                    20040 817 - 20080702 HON
Period of Service Under Review:
Date of Current Enlistment: 20080703     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120430      H ighest Rank:
Length of Service : Y ea rs M on ths 27 D a ys
Education Level:        AFQT: 74
MOS: 0651/0659
Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20100519 :       Article (General A rticle, indecent language)
         Awarded: Suspended:

- 20110914 :      Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: Commit sexual harassment against LCpl S_ on or about 20110214 and 20110302
         Specification 2: Commit sexual harassment against Sgt M_ on or about 20110224 and 20110302
         Specification 3: Commit sexual harassment against Sgt S_ on or about 20110224 and 20110302
         Article (General A rticle , 3 specifications )
         Specification 1: Spoke indecent language toward LCpl S_ on or about 20110224 and 20110302
          Specification 2: Spoke indecent language toward Sgt M_ on or about 20110224 and 20110302
         Specification 3: Spoke indecent language toward Sgt S_ on or about 20110224 and 20110302
          Awarded: RED to MCMAP Belt of Green Belt Suspended: (1 month)

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20081118 :       For failure to obey oral and written directives

- 20100519 :       For you were found guilty of violation of Article 134 of the UCMJ

- 20110506 :       For your assignment to the Marine Corps B ody Composition Program (B CP )

- 20110622 :      For failure to meet the minimum standards of the Physical Fitness Test by not completing the 3 mile run w ithin the prescribed time limit

- 20110904 :       For violation of Article 92 x3 and 134 x3 of the UCMJ in which you committed sexual harassment toward three different individuals and spoke certain indecent language toward three different individuals

- 20110926 :       For your unsatisfactory performance while assigned to the Marine Corps BCP

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 P1900.16F), 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 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 his misconduct of record does not warrant an Under Other Than Honorable Conditions characterization of service.
2.       The Applicant contends his in-service conduct and performance warrants an upgrade to Honorable.
3.       The Applicant contends his discharge is improper based on improper actions of his Administrative Separation Board.

Decision

Date: 20 1 4 0724           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. 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 in his third enlistment included 6105 counseling warnings and nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 134 (General A rticle, 4 specifications) and Article 92 (Failure to obey order or regulation, 3 specifications). 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 and request an administrative board . The Administrative Separation Board determined by majority vote that the preponderance of evidence support ed separation by reason of a P attern of M isconduct and U nsatisfactory P erformance, and recommended that the Applicant be separated Under Other Than Honorable Conditions. The Separation Authority, after reviewing the specifics of the case and after having his Staff Judge Advocate review the specifics of the case, determined the primary basis for separation should be Pattern of Misconduct, and the Applicant should be discharged Under Other Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends his misconduct of record does not warrant an Under Other Than Honorable Conditions characterization of service. The Applicant stated on his DD Form 293: “I haven’t done anything to warrant an OTH according to guidelines . ” In accordance with paragraph 6210.3 of the Marine Corps Separation and Retirement Manual , a minimum of two incidents occurring within one enlistment is required to establish a basis for separation due to Pattern of Misconduct. The infractions may be minor or more serious. There must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. The misconduct need not have been the subject of NJP or military or civilian conviction. The incidents of misconduct do not have to be of the same nature. During the Applicant’s period of enlistment under review, he received six 6105 retention warning counseling s and was found guilty at two NJPs for violations of the UCMJ: Article 134 (4 specifications) and Article 92 (3 specifications), which clearly met the requirements for administrative separation based on a Pattern of Misconduct. Based on the Applicant’s misconduct of record , the NDRB determined the Applicant did engage in conduct involving one or more acts or omissions that constituted a significant departure from the conduc t expected of a Marine, and an Under Other Than Honorable Conditions characterization of service was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service conduct and performance warrants an upgrade to Honorable. The Applicant received Honorable characterizations of service for his first two enlistments from August 2000 to July 2008. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his third enlistment, he received six retention warnings and was found guilty at two NJPs. Since the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, 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 in his third enlistment , 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 discharge is improper based on improper action s of his Administrative Separation Board. The Applicant included wi th his DD Form 293 a Counsel for the Respondent’s letter of 02 April 2012 that challenged the Administrative Separation Board’s action of modifying the findings of the Administrative Discharge Board Report . After reviewing the Applicant’s complete discharge package, the NDRB determined this issue to be immaterial to the propriety of the Applicant’s discharge . Modifications to the report were due to an administrative error when completing the form and did not result in material changes to the board’s results. T he Staff Judge Advocate’s letter of 25 April 2012 state d he reviewed the administrative separation proceedings and found them to be sufficient in law and fact. T he Separation A uthority ( Commander, 3D Marine Aircraft Wing ) note d in his letter of 25 April 2012 that he considered the Counsel for the Respondent’s request before directing separ ation Under Other Than Honorable Conditions. 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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