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)      20080822 - 20081002      Active: 
USMCR 20081003 - 20081211

Period of Service Under Review:
Date of Appointment: 20081212    Age:
Years Contracted: Indefinite
Date of Discharge: 20130828      Highest Rank: 1STLT
Length of Service: Year(s) Month(s) 17 Day(s)
Education Level:         AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations (per DD 214):     Rifle Pistol CoA

Periods of UA/CONF:

NJP:     SCM:     SPCM:

CIVIL ARREST:

- 20120421:      Charges: Driving Under the Influence of Alcohol (DUI)

CC:

- 20121107:      Offense: Reckless Driving that did not involve any alcohol related conduct (Reckless Driving)
         Sentence: $953.00 fine, $35.00 assessment fee, court ordered enrollment in a public service program, and abide by the standard alcohol conditions in California Vehicle Code 23600, and complete a first conviction program

Retention Warning Counseling:

Discharge Process

20120421         Date of civilian DUI

20120423         Applicant returned to command and conducts scheduled flight syllabus

20120425         Applicant’s command informed about his arrest from the Provost Marshall Office off-base arrest report

20120502         Diagnosed with Alcohol Abuse by CSACC and recommended for Intensive Out-Patient (IOP) treatment program

20120507-        IOP alcohol abuse counseling treatment
20120523

20121107         Applicant plead guilty in the Superior Court of California, County of San Diego, to California Vehicle Code Section 23103(a): “Reckless Driving that did not involve any alcohol related conduct” (Reckless Driving) as part of a negotiated plea

20121109:        Commanding Officer, Marine Light Attack Helicopter Training Squadron 303 ordered a command investigation into the incident that resulted in the Applicant’s arrest

20121214:        The investigating officer for the command investigation ordered by the Commanding Officer, Marine Light Attack Helicopter Training Squadron 303 substantiated allegations of misconduct against the Applicant for violations of UCMJ Article 92 (Failure to obey order or regulation) and Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel)

20130128:        Aviation manpower and Support Branch, Marine Aviation, Headquarters Marine Corps denied the Applicant’s request for a flight waiver due to his diagnosis of alcohol abuse

20130221:        Commanding General, 3d Marine Aircraft Wing forwarded Report of Misconduct to the Commandant of the Marine Corps recommending the Applicant’s administrative separation as a probationary officer via notification procedures.

20130221:        Commanding General, 3d Marine Aircraft Wing notified Applicant of administrative separation utilizing the notification procedure

20130222:        Applicant acknowledged receipt of a copy of his report of misconduct

20130222:        Applicant acknowledged his separation notification and makes separations rights elections

20130226:        Applicant submitted a rebuttal to the report of misconduct submitted by the Commanding General, 3d Marine Aircraft Wing

20130226:        Applicant submitted a rebuttal to his recommendation for administrative separation

20130306:        Commanding General, 3d Marine Aircraft Wing submited separation recommendation to the Secretary of the Navy via the Commanding General, I Marine Expeditionary Force and the Commandant of the Marine Corps

20130318:        Applicant completed court ordered California First Conviction Program

20130328:        Commanding General, I Marine Expeditionary Force endorsed and forwarded the Applicant’s report of misconduct recommending separation with a General (Under Honorable Conditions) discharge

20130702:        Commandant of the Marine Corps endorsed and forwarded the Applicant’s report of misconduct to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) recommending separation with a General (Under Honorable Conditions) discharge

20130722:        Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of substandard performance of duty and misconduct, moral or professional dereliction, with characterization of service as General (Under Honorable Conditions)

20130828:        Applicant discharged this date






Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “SECNAVINST 1920.6C”
         “MISCONDUCT”

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 111.

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

Applicant’s Issues

1.       The Applicant contends his discharge was improper as his discharge did not coincide with the Navy’s policy for detection and deterrence of military drug and alcohol abuse nor MARADMIN 316/01.
2.       The Applicant contends his discharge was improper because he would have demanded trial by court-martial if he had known the advice provided by his squadron legal officer concerning the consequences of his civil guilty plea was incorrect.
3.       The Applicant contends his discharge was inequitable because it was based on one isolated incident in over four years of service.

Decision


Date: 20141216           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 NDRB extensively reviewed the Applicant’s record of service and found no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the Applicant was arrested on 21 April 2012 for Driving Under the Influence of Alcohol (DUI) by the California Highway Patrol (CHP) in El Cajon, California. The record of evidence shows that the Applicant told the CHP Officer that he consumed four beers, failed a series of field sobriety tests, and had a Blood Alcohol Content (BAC) test based on a blood draw that revealed he had a BAC level of .21. As part of a negotiated plea the Applicant plead guilty in the Superior Court of California, County of San Diego, to California Vehicle Code Section 23103(a): “Reckless Driving that did not involve any alcohol related Conduct” (Reckless Driving) on 7 November 2012. Based on the offense(s) committed by the Applicant, command administratively processed for separation as a probationary flight officer due to his substandard performance of duty and misconduct, moral or professional dereliction. When notified of administrative separation processing using the procedure, the Applicant right to submit a rebuttal statement to the Secretary of the Navy, waived his right to tender a resignation in lieu of separation processing, and waived his right to consult with a judge advocate or civilian counsel, but did consult with a Naval Reserve lawyer acting in a civilian capacity as his counsel during his civil trial. The Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s administrative separation on 22 July 2013 with a General (Under Honorable Conditions) discharge.

: (Decisional) () . The Applicant contends his discharge was improper as his discharge did not coincide with the Navy’s policy for detection and deterrence of military drug and alcohol abuse nor MARADMIN 316/01. Regulations require members who have an ongoing history of alcohol abuse to be medically screened for an alcohol problem. If diagnosed as dependent on alcohol by competent medical authority, which does not include the commanding officer, appropriate treatment must be offered prior to separation. The purpose of this treatment is not to rehabilitate a service member for further service but rather to provide treatment before separation. The record of evidence shows the Applicant was provided intensive outpatient treatment from 7 to 23 May 2012 after receiving a 2 May 2012 diagnosis of alcohol abuse by the Consolidated Substance Abuse Control Center. Additionally, the NDRB noted that in order to obtain his commission the Applicant disclosed and requested a waiver for his pre-service moving violations and alcohol citations. This waiver request letter was signed by the Applicant and specifically stated “I want to assure the Marine Corps I have left foolish actions in the past. It has been over a year since I have received a moving violation, and over two years since I have received an alcohol related citation.”

The NDRB 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 Applicant’s statement indicating he interprets the policies set forth concerning drug and alcohol abuse to allow for his retention this alone is not enough to refute the presumption of regularity. In addition, the Board found the Applicant was submitted for separation for his misconduct as evidenced by his civil arrest and conviction and not voluntary attempts at rehabilitating himself. Therefore, the Board concluded the Applicant was discharged appropriately, equitably, and properly. Relief denied.

: (Decisional) () . The Applicant contends his discharge was improper because he would have demanded trial by court-martial if he had known the advice provided by his squadron legal officer concerning the consequences of his civil guilty plea was incorrect. The Applicant contends he was wronged by his command legal officer which impacted his other than honorable discharge. The record contained no evidence of any wrongdoing by the Applicant’s command legal officer or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. Furthermore, a servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. Additionally, servicemembers may be separated based on civilian convictions, or actions tantamount to findings of guilt, when the same or closely related offense would warrant a punitive discharge per the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

: (Decisional) () . The Applicant contends his discharge was inequitable because it was based on one isolated incident in over four years of service. A servicemember may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. The record of evidence shows the Applicant was arrested for driving under the influence on 21 April 2012, was convicted of reckless driving pursuant to his plea deal on 7 November 2012, and on 14 December 2012 his command’s investigating officer substantiated allegations for violations of UCMJ Article 92 (Failure to obey order or regulation) and Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel) in his findings.

Further, as a result of recommendations from a flight physical relating to his alcohol abuse the Applicant’s request for a flight waiver was denied by Aviation Manpower and Support Branch, Marine Aviation, Headquarters Marine Corps on 28 January 2013. Given the completed civilian adjudication of his misconduct and his status as a probationary flight officer the Applicant was notified for separation proceedings and a report of misconduct was submitted for inclusion in his official military personnel file. The report of misconduct submitted by the Commanding General, 3d Marine Aircraft Wing, stated “In evaluating [the Applicant’s] potential for further service, I have considered [his] pre-service events; however, I have not considered them in any recommendation or determination relating to characterization of service.” The Applicant submitted appropriate rebuttal statements to his separation recommendation and report of misconduct which were considered by the Secretary of the Navy (Manpower and Reserve Affairs). The Applicant did not present any evidence to demonstrate the in-service misconduct resulting in his separation was an aberration. The NDRB found the characterization of the Applicant’s discharge equitable and consistent with the characterization of discharge given others in similar circumstances. 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 remain and the narrative reason for separation shall remain MISCONDUCT.

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