Upgrade.Vet

USMC | DRB | 2015_Marine | MD1500311

Original file (MD1500311.rtf) Auto-classification: Denied

ex-PFC, USMC

Current Discharge and Applicant’s Request

Application Received: 20141124

Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS

Narrative Reason for Discharge: (corrected) MISCONDUCT

Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT]

Applicant’s Request:     Characterization change to: HONORABLE
         Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20111228 - 20110506 COG         Active: NONE

Period of Service Under Review:
Date of Current Enlistment: 20120507    Age at Enlistment: 24
Period of Enlistment: 4 Years 0 Months
Date of Discharge: 20140515     Highest Rank: LANCE CORPORAL
Length of Service: 02 Year(s) 00 Month(s) 09 Day(s)
Education Level: 16     AFQT: 82
MOS: 4341
Proficiency/Conduct Marks (# of occasions): 3.3 (NFIR) / 3.8 (NFIR)     Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214):     Rifle EX NDSM GWOTSM OVSM

Periods of UA/CONF: NONE

NJP: 2

- 20130730:      Article 92 (Failure to obey order or regulation; O/A 20130611while onboard Camp Foster, Okinawa, SNM was derelict in performance of duties by plagiarizing an article written by another Marine)
         Awarded: FOP RESTR EPD Suspended: NONE

- 20140326:      Article 92 (Failure to obey order or regulation) 3 specifications
         Specification 1: O/A 10130930-20131004 while onboard MCB Camp Smedley D. Butler, Okinawa, SNM was delinquent in the performance of duties by failing to provide a factually accurate story.
         Specification 2: O/A 20131213-20140226, SNM was derelict in the performance of duties to secure his assigned barracks room when unoccupied on numerous occasions)
         Specification 3: O/A 20131221 in Okinawa, Japan, SNM violated a general order by wrongfully consuming more than two alcoholic beverages while off installation)
         Article 107 (False official statements; O/A 20130930-20131004 while onboard MCB Camp Smedley D. Butler, Okinawa, SNM did, with intent to deceive, submit a news story containing incorrectly attributed quotes)
         Awarded: RIR FOP RESTR EPD Suspended: NONE

SCM: NONE        SPCM: NONE       CC: NONE

Retention Warning Counseling: 2

- 20130730:      For deficiencies resulting in NJP on 20130730 for submitting a plagiarized article.

- 20140326:      For deficiencies resulting in NJP on 20140326 for failing to provide factually accurate article.

Administrative Corrections to the Applicant’s DD 214

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

         Block 28, Narrative Reason for Separation, should read: “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 P1900.16F), 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 he does not have access to needed VA benefits and the discharge characterization is a barrier to future employment opportunities as a lawyer.
2.       The Applicant contends that the charges against him were fabricated, half-truths, and contained false testimony.
3.       The Applicant contends that he desired a court martial but was then charged with additional charges so that he would accept admin istrative separation.
4.       The Applicant contends that medical problems caused severe medical duress and the handling of his discharge is inconsistent and unethical with the traditions and codes of Naval service.
5.       The Applicant contends that he was being process ed for medical separation when the disciplinary separation was started.

Decision

Date: 20140402 DOCUMENTARY REVIEW Location: Washington D.C.    Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT .

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 two 6105 counseling warnings, two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) and Article 107 (False official statements). Based on the offenses committed by the Applicant, the command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel and submit a written statement. The Applicant waived his right to request a hearing before an administrative board.

Issue 1: (Nondecisional) The Applicant contends that he does not have access to needed VA benefits and that the discharge characterization is a barrier to future employment opportunities as a lawyer. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. The Applicant is directed to the Addendum , specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional assistance regarding a benefit determination review.

Issue 2: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that the charges against him were fabricated, half-truths, and contained false testimony. The Applicant provided medical information and a statement with his application but did not submit any documentation to rebut the presumption of regularity in governmental affairs by the NDRB. Regarding the July 2013 Article 92 (Failure to obey order or regulation) NJP charges for plagiarism, the Applicant stated that he had not correctly attributed the original author in both his letter to the administrative separation board and in the statement included with his NDRB application. During the NJP proceedings, the Applicant signed acknowledging his right to demand trial by court martial and consult with legal counsel. The Applicant also signed acknowledging his right to appeal the results of the NJP and indicated that he would not appeal. During the legal proceedings leading to the second NJP for the Article 107 (False statements) charges, the Applicant admitted in his statement to the NDRB that he had quoted what he remembered of the conversation from his notes. Upon reviewing the signed written statements from the two Sergeants quoted, both individuals emphatically deny they made the remarks attributed to them or any similar statements although they do recall speaking with the Applicant to give him the info needed for photograph captions. Additionally, the record shows the Applicant did not merely misquote or embellish the Sergeants’ statements for the article, but actually attributed facts to one of the Sergeants that was clear error (e.g. the Sergeant’s team won, when in fact the Sergeant’s team lost); thereby, failing to perform the duty and due diligence as a Combat Correspondent.

In the Applicant’s statement to the NDRB, the Applicant also admits that he would have been found guilty to the Article 92 (Failure to obey order or regulation) charge at court martial for failing to secure his barracks room. The Applicant specifically disputes the second specification of Article 92 for the wrongful consumption of more than two alcoholic beverages while off installation but did not provide any specific information to contradict the charges. The Applicant initially requested trial by court martial on 7 January 2014 but subsequently negotiated a Pretrial Agreement (PTA) dated 17 March 2014 accepting NJP and possible administrative separation while waiving an administrative separation board. When notified of administrative separation processing, the Applicant exercised his rights to consult with a qualified counsel and submit a written statement. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption. The Applicant did not provide any evidence that any of the charges were fabricated, half-truths or contained false testimony. The NDRB reviewed the disciplinary and separation proceedings and did not find any impropriety. Relief denied.

Issue 3: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that he desired a court martial but was then charged with additional charges so that he would accept admin istrative separation. The record documents that the Applicant did refuse the second NJP exercising his right to demand trial by court martial. Additional charges were added by the command ; however , thos e charges relate d to events which occurred after the initial charge sheet was submitted. It is the command ’ s prerogative t o submit all charges of wrongdoing for consideration at court martial. The Trial Counsel reported in a letter to the Convening Authority on 18 March 2014 that he believed there was likely enough evidence to support conviction on all three charges. In the course of his negotiating his PTA, the Applicant signed and acknowledged by written informed consent that that he was freely and voluntarily accepting NJP and attest ed that he was satisfied with his defense counsel. He also had the right to withdraw from the PTA at any point u ntil the sentence was announced . The Applicant has not presented any documentation of Command wrong doing during the discharge process . The NDRB presumed regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. Relief denied.

Issue 4: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that medical problems caused severe medical duress and the handling of his discharge is inconsistent and unethical with the traditions and codes of Naval service. The record documents that the Applicant was diagnosed with ulcerative colitis and was receiving treatment for the condition. The Applicant’s service included two nonjudicial punishments for violations of UCMJ Article 92 and Article 107. Violations of UCMJ Article 92 and Article 107 are considered serious offenses for which a punitive discharge is authorized. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was inconsistently or unethically treated. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. 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 who served honorably, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

Issue 5: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that he was being processed for medical separation when the disciplinary separation was started. Department of Defense regulations provide that disciplinary separations supersede disability separations. 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. The characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable. 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 his 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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USMC | DRB | 2015_Marine | MD1500311

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