ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:
        
Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20041216 - 20050626     Active:  20050627 - 20081001

Period of Service Under Review:
Date of Current Enlistment: 20081002    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20120405     Highest Rank:
Length of Service: Year(s) Month(s) 04 Day(s)
Education Level:        AFQT: 50
MOS: 4421
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of UA/CONF:

NJP:

- 20110607:      Article (Failure to obey order or regulation; 2 specifications)
         Specification 1: On or about 31 March 2011, operated a motor vehicle while having a suspended driver’s license.
         Specification 2: On or about 24 May 2011, operate a vehicle while having an expired driver’s license.
         Article (False official statement)
         Article (Larceny; stole one peanut butter and jelly on wheat bread sandwich and one MET/RX Chocolate Graham Protein Bar, non-military property of a value of less than $500.00, from the MCX Retail Store.
         Awarded: Suspended:

- 20110805:      Article (Assaulting or willfully disobeying superior commissioned officer; On or about 19 July 2011, disobeyed order from Commissioned Officer by wearing a grey martial arts belt that was revoked at previous nonjudicial punishment.)
         Article (Failure to obey order or regulation; On or about 19 July 2011, failed to obey an order or regulation by wearing a grey martial arts belt while unauthorized.)
         Article (False official statement; On or about 19 July 2011, made a false statement that he had received grey belt marital arts recertification training to GySgt L------)
         Awarded: Suspended:

SCM:

SPCM:
        
CC:

Retention Warning Counseling:

- 20110620:      For violation of Article 92 (Failure to obey order or regulation; 2 specifications), Article 107 (False official statements), and Article 121 (Larceny and wrongful appropriation) from nonjudicial punishment conducted on 20110607.

- 20110707:      For violation of UCMJ Article 92 (Failure to obey order or regulation)


- 20110805:      For violation of Article 90 (Assaulting or willfully disobeying superior commissioned officer), Article 92 (Failure to obey order or regulation), Article 107 (False Official Statement) from nonjudicial punishment conducted on 20110805

- 20081028:      For failure to demonstrate the leadership traits of judgment, dependability, and integrity. By providing false official statements to avoid physical training and failure to arrive at your appointed place of duty.


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:        

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 that the notification of separation proceedings and the board’s findings were not done in accordance with regulations resulting in the discharge being unfair and inequitable.
2.       The Applicant contends that his overall service is meritorious and any other characterization of service other than honorable is unfair and inequitable.

Decision


Date: 20141030           Location: Washington D.C.        Representation:

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 governmental affairs 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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings, and for of the Uniform Code of Military Justice (UCMJ): Article 90 (Assaulting or willfully disobeying superior commissioned officer, 1 specification), Article 92 (Failure to obey an order or regulation; 3 specifications), Article 107(False Official Statement, 2 specifications), and Article 121 (Larceny, 1 specification). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) () . The Applicant contends that the notification of separation proceedings and the board’s findings were not done in accordance with regulations resulting in the discharge being unfair and inequitable. 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 notification of separation proceedings and the board’s findings were not done in accordance with regulations.

The Applicant was notified on 20110901 that the Commanding General, 1 ^st Marine Logistics Group, was going to discharge him by reason of pattern of misconduct with the least favorable characterization of service being Under Other Than Honorable Conditions. The Applicant elected his right to speak with a lawyer and requested an administrative separation board. The Applicant was given the opportunity to present matters of mitigation to an administrative separation board on 20120120. That board found by a majority vote: that a preponderance of the evidence proves all acts or omissions alleged in the notification; recommended separation from the Marine Corps (suspended); and that the Applicant should receive a General (Under Honorable Conditions) characterization of service. Although the Applicant has several character statements stating that he is a stellar Marine and he should be retained in the Marine Corps, his Legal Services Chief and Officer in Charge (OIC) both agreed that the Applicant should be separated. The Legal Services Chief stated “In my opinion, Cpl Dukes does not have any rehabilitate potential” and his OIC stated “I think we have exhausted every opportunity possible to rehabilitate this Marine”. On 20120405, the third endorser and discharge authority (Commander, 1 ^st Marine Logistics Group), gave direction to 1 ^st Supply Battalion , Combat Logistics Regiment 1 to separate the Applicant within 5 working days with a General (Under Honorable Conditions) discharge, reenlistment code of RE-4, and separation code of GKA1. The 1 ^st Supply Battalion Commanding Officer acted accordingly and separated the Applicant on 20120405. After an exhaustive review of the record, the NDRB found that the Applicant was afforded all of his rights, and the discharge was proper and equitable. Relief denied.

: (Decisional) () . The Applicant contends that his overall service is meritorious and any other characterization of service other than honorable is unfair and inequitable. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. The Applicant had a previous period of enlistment from 20050627 – 20081001 in which he received an Honorable discharge. The Applicant’s current enlistment started on 20081002 in which he was on a 4 year 9 month contract. During his current period of enlistment, the Applicant received four 6105 retention warning and two NJP punishments. 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 for General (Under Honorable Conditions). Therefore, the NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. 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