ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to: END OF OBLIGATED SERVICE
        

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20070724 - 20070820     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20070821    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20121211     Highest Rank:
Length of Service: Year(s) Month(s) 21 Day(s)
Education Level:        AFQT: 81
MOS: 3043
Proficiency/Conduct Marks (# of occasions): (14) / (14)       Fitness Reports:

Awards and Decorations (per DD 214):     Rifle CoC LoA

Periods of UA/CONF:

NJP:

SCM:

SPCM:

GCM:

- 20120823:      Article (Failure to obey order or regulation, wrongfully provide alcohol to PFC D_, a person under the minimum drinking age)
         Article (General article, wrongfully have sexual intercourse with PFC D_, a woman not his wife)
         Sentence:

CIVIL ARREST:

CC:

Retention Warning Counseling:








Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
        
“6210.6”
         “GKQ1”
         “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, Articles 92, 128, and 134.

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

Applicant’s Issues

1.       The Applicant contends he was improperly administratively separated since he was held past his EAS.
2.       The Applicant contends since he was held past his EAS the Article 128 violation should not have been considered by the administrative board.
3.       The Applicant contends having an E-6 on his administrative board invalidates his administrative separation.
4.       The Applicant contends his in-service conduct warrants an upgrade.
5.       The Applicant contends he was improperly separated for a Pattern of Misconduct and was only notified of Commission of a Serious Offense.

Decision


Date: 20150108           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 Applicant’s record of service included general court-martial (GCM) for of the UCMJ: Article 92 (Failure to obey order or regulation, wrongfully provide alcohol to PFC D_, a person under the minimum drinking age) and Article 134 (General article, wrongfully have sexual intercourse with PFC D_, a woman not his wife). Based on the offenses 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. The Applicant’s administrative board voted three to zero that the preponderance of the evidence supported that the Applicant had committed serious offenses based on Articles 92 and 134 violations and voted two to one that the preponderance of the evidence supported that the Applicant had committed a serious offense based on Article 128. The administrative board recommended the Applicant’s separation with an Under Other Than Honorable Conditions characterization.

: (Decisional) () . The Applicant contends he was improperly administratively separated since he was held past his EAS. 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 record shows that the Applicant was under sentencing due to his GCM conviction during his administrative separation processing. Additionally, the evidence provided by the Applicant shows that the Applicant requested clemency and an “early out” knowing that this scenario would still include an Under Other Than Honorable Conditions characterization. The NDRB discerned no impropriety or inequity and the Applicant’s separation for his misconduct was appropriate. Relief denied.

: (Decisional) () . The Applicant contends since he was held past his EAS the Article 128 violation should not have been considered by the administrative board. The record shows that the Applicant was under sentencing due to his GCM conviction during his administrative separation processing. The NDRB does not concur with the Applicant’s contention and determined that misconduct which occurred during his enlistment to include the period the Applicant was on legal hold and serving his post-conviction sentence could properly be used as a basis for his administrative separation. Relief denied.

: (Decisional) () . The Applicant contends having an E-6 on his administrative board invalidates his administrative separation. 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. Per the MARCORSEPMAN, if any mandatory requirement for the composition of the administrative board cannot be met, the convening authority will request appropriate instructions from CMC (MMSR-3). Although, there is no record of the convening authority requesting instructions from CMC (MMSR-3) in the Applicant’s service record, the NDRB determined that the evidence submitted by the Applicant does not refute the presumption of regularity in governmental affairs. The Applicant was afforded the opportunity to challenge his administrative board members to include the Staff Sergeant. Additionally, the Applicant would have been afforded the opportunity to submit a letter of deficiency challenging the procedures of his administrative board. Relief denied.

4: (Decisional) () . The Applicant contends his in-service conduct warrants an upgrade. 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. Relief denied.

5: (Decisional) () . The Applicant contends he was improperly separated for a Pattern of Misconduct and was only notified of Commission of a Serious Offense. The Applicant’s DD Form 214 annotates that he was separated by reason of Pattern of Misconduct. However, the record clearly shows that he was only notified of Commission of a Serious Offense and that the Separating Authority’s letter dated 30 November 2012 clearly shows that the Applicant was separated due to a Commission of a Serious Offense and not a Pattern of Misconduct. The NDRB will make the appropriated administrative corrections to the CMC, MMSB-13. However, the NDRB found no impropriety for the Applicant’s administrative separation for a Commission of a Serious Offense and determined that his separation for his misconduct was appropriate. 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 UNDER OTHER THAN HONORABLE CONDITIONS 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