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USMC | DRB | 2014_Marine | MD1400846
Original file (MD1400846.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140328
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)       20011228 - 20020908     Active:   20020909 - 20070319

Period of Service Under Review:
Date of Current Enlistment: 20070320     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20110414      H ighest Rank:
Length of Service : Y ea rs M on ths 26 D a ys
Education Level:        AFQT: 90
MOS: 7051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle (4) Pistol (2) (2) ACM C o C LoA (3)

Periods of UA / CONF :

NJP:

- 20090714 :       Article (Failure to obey order or regulation; did, on or about 31 May 2009, violate U.S. Navy Regulation, Article 1165, by engaging in an unduly familiar relationship that did not respect differences in grade or rank, to wit: simultaneously engaging in sexual conduct with multiple partners including a junior Marine within your work section)
         Awarded: Suspended:

- 20110208 :      Article (General A rticle , 2 specifications )
         Specification 1: did, between on or about 1 July 2009 and on or about 09 November 2010, wrongfully have sexual intercourse with a married women not his wife.
         Specification 2: did, between on or about 27 September 2010 and or about 09 November 2010, wrongfully cohabitate with a married woman not his wife.
         Article 92 (Failure to obey order or regulation , 2 specifications )
         Specification 1: having knowledge of a lawful order, to wit: Marine Corps Protective Order dated 16 November 2009, and order which it was his duty to obey, did at or near Havelock, NC, between on or about 16 November 2009 and on or about 21 December 2010, fail to do the same by wrongfully contacting or communicating with _____.
          Specification 2: having knowledge of a lawful order, to wit: Marine Corps Protective Order dated 16 November 2009, and order which it was his duty to obey, did at or near Havelock, NC, between on or about 16 November 2009 and on or about 21 December 2010, fa il to obey by wrongfully being within 500 feet of ____ .
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090713 :       For engaging in an unduly familiar relationship that did not respect differences in grade or rank, to wit: simultaneously engaging in sexual conduct with multiple partners including a junior Marine within your work section , reference NJP of 20090714.

- 20110208 :       For violations of the UCMJ: Article 92x2 and Article 134x2; reference NJP of 20110208.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

                   “ CONTINUOUS HONO RABLE ACTIVE SERVICE FROM 020909 UNTIL 070319 ”
        
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 :        

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 seeks an upgrade to qualify for the G.I. Bill and other Department of Veterans Affairs (VA) benefits .
2.       The Applicant contends his in-service conduct and performance outweigh his misconduct.
3.       The Applicant contends there were mitigating factors for his misconduct.

Decision

 Date: 20 1 4 0904           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 second enlistment included 6105 counseling warnings and nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 3 specifications) and Article 134 (General A rticle, 2 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 right to consult with a qualified counsel but waived his right to submit a written statement . In accordance with the terms of a pre-trial agreement, the Applicant waived his right to an administrative board .

: (Nondecisional) The Applicant seeks an upgrade to qualify for the G.I. Bill and other VA benefits . The 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. 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.

: (Decisional) ( ) . The Applicant contends his in-service conduct and performance outweigh his misconduct. The Applicant received an Honorable characterization of service for his first enlistment from September 2002 to March 2007. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he received two retention warnings and was found guilty at two NJPs of committing several UCMJ violations. 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 second 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 there were mitigating factors for his misconduct. Per the Applicant’s statement, he conceived a child with a woman who, at the time, was separated from her husba nd. The Applicant contends he was “torn between duty and family , ” and the decision s he made were to protect his child, not to disobey his commanding officer’ s orders. The Applicant’s record contains two NJPs for maintaining inappropriate relationships. While the Applicant may feel that his family issues were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. 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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