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)      20080521 - 20081026     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20081027    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20120913     Highest Rank:
Length of Service: Year(s) Month(s) 17 Day(s)
Education Level:        AFQT: 49
MOS: 0111
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle CoA (2d Awd)

Periods of UA/CONF:

NJP:

- 20110602:      Article (Failure to obey order or regulation) 7 specifications
         Article (General article) 3 specifications
         Awarded: Suspended: Vacated 20111005

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20100730:      For getting a ticket for reckless driving by speed. Specifically, you were driving your POV at a speed of 92 mph in a 65 mph zone

- 20110202:      For lack of maturity and professionalism

- 20110614:      For NJP given this day for your violation of Article 92 x7, failure to obey order or regulation. In that you violated a general regulation by wrongfully engaging in personal relationships with multiple Staff Non-Commissioned Officers. Violation of Article 134 x6 in that you willfully and knowingly had inappropriate sexual relationships with men not your husband


Administrative Corrections to the Applicant’s DD 214

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

         “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. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

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 92 and 134.

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

Applicant’s Issues

1.       The Applicant contends that the Convening Authority’s failure to recommend a general discharge was erroneous and unlawful under the circumstances.
2. The Applicant contends that the decision of the separation authority to discharge Petitioner with an other than honorable characterization of service was unjust under the circumstances.

Decision


Date: 20150423           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 92 (Failure to obey and order or recommendation, 7 specifications), and Article 134 (General article, 3 specifications. 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. On 20120626, the Administrative Board found by a vote of 3 to 0 that the preponderance of the evidence supported misconduct and recommended by a vote of 3 to 0 for separation. The Separating Authority(SA) approved the Administrative Board’s recommendation to separate the Applicant. The SA directed the Applicant be separated with Under Other Than Honorable Conditions discharge.

: (Decisional) () . The Applicant contends that the Convening Authority’s failure to recommend a general discharge was erroneous and unlawful under the circumstances. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. However, the NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on propriety grounds if the NDRB finds that the discharge was improper as it was not conducted in accordance with the applicable guidance given by the MARCORSEPMAN and on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way improper or inconsistent with the standards of discipline in the United States Marine Corps.

Furthermore, on 20110509, the Applicant entered into a pre-trial agreement avoiding a special court-martial with the stipulation that she would accept NJP. One of the conditions of the agreement was that the Applicant would not have any other misconduct prior to her NJP and testify truthfully in the court-martial hearings of other Marines with similar misconduct that she was involved in. Another portion of the agreement stated that “I agree to waive any administrative discharge board based on any act or omission reflected in the charges and specifications that are the subject of this agreement provided that the Convening Authority recommends no worse than a General (under honorable conditions) characterization of service.” The Applicant was well aware that she was going to eventually be separated and at best, receive a recommendation no less than General (Under Honorable Conditions) if she waived her board. The Applicant did not have any other misconduct prior to her NJP and was taken to NJP accordingly on 20110602 with portions of her punishment suspended for six months. Due to additional misconduct, her suspension was vacated. Subsequently, the Applicant’s Commanding Officer recommended the Applicant for a characterization of service as Under Other Than Honorable Conditions. The Applicant then exercised her rights to an administrative separations board, was represented by qualified counsel, and that board found on 20120626 that she should be separated with an Under Other Than Honorable Conditions characterization of service by a vote of 3-0. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.

: (Decisional) () . The Applicant contends that the decision of the separation authority to discharge Petitioner with an other than honorable characterization of service was unjust under the circumstances. The record contained no evidence of any wrongdoing by the Applicant’s separation authority 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. On 20120525, the Applicant was appropriately notified of administrative separations proceedings by her Command Officer due to commission of a serious offense and he recommended that she be separated with an Under Other Than Honorable Conditions characterization of service. On 20120612, the Applicant along with her defense counsel submitted a conditional waiver of administrative discharge board to the Commanding General, Training Command, who was the Separating Authority (SA) with no relief given, but he did approve the Applicant’s request for an administrative separation board. On 20120626, the Applicant along with her defense counsel, was present and presented her defense at the administrative separations board. That board found that the Applicant should be separated with an Under Other Than Honorable Conditions characterization of service by a vote of 3-0. On 20120613, the Applicant’s defense counsel submitted Additional Matter in the Administrative Separation to the SA. The SA reviewed the additional matters and “determined that the deficiency listed by the Counsel for the Respondent is without merit” and no relief was given. On 20120830 after an exhaustive review of the record by the staff judge advocate, the SA approved the discharge of the Applicant. The Applicant was subsequently discharged with an Under Other Than Honorable Conditions characterization of service due to commission of a serious offense on 20120913. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

Summary: The Applicant failed to appear before the NDRB at the scheduled personal hearing on 20150406. The Applicant waived her right to a personal hearing; however, because the Applicant has not had a record review, the Board conducted a record review of her discharge. 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 UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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