ex-Sgt, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20050422 - 20050605 COG         Active:  USMC 20050606 -20080418 HON

Period of Service Under Review:
Date of Current Enlistment: 20080419    Age at Enlistment: 26
Period of Enlistment: 5 Years 2 Months
Date of Discharge: 20140221     Highest Rank: SERGEANT
Length of Service: 05 Year(s) 10 Month(s) 03 Day(s)
Education Level: GED    AFQT: 72
MOS: 3043
Fitness Reports: AVAILABLE

Awards and Decorations (per DD 214):     Rifle EX Pistol MM NMCCM NMCAM CAR(KUWAIT/IRAQ) NUC(3) GCM NDSM ICM(w/2 stars) GWOTSM OVSM SSDR(3) COA(5) LOA(4) MM

Periods of UA: NONE

NJP: 2

- 20060525:      Article 134 (General article, Firearm, discharging - through negligence; O/A 20060521 at Camp Fallujah, Iraq, SNM did through negligence discharge a machine gun in the clearing berm.)
         Awarded: FOP EPD Suspended: FOP

- 20090224:      Article 89 (Disrespect toward superior commissioned officer; O/A 20090131 at San Diego, CA, SNM behaved with disrespect toward a Brigadier General by having his hands in his pockets and top button of blue dress coat unbuttoned.)
         Article 134 (General article, Disorderly conduct, drunkenness; O/A 20090131 at San Diego, CA, SNM was drunk and disorderly.)
         Awarded: RIR FOP Suspended: RIR FOP

SCM: 1

- 20131003:      Article 80 (Attempts) 2 specifications
         Specification 1: O/A 20130727 at or near Marine Corps Base Camp Pendleton, CA, SNM violated Article 1165, U.S. Navy Regulation by attempting to have an unduly familiar relationship with a PFC.
         Specification 2: O/A 20130803 at or near Marine Corps Base Camp Pendleton, CA, SNM violated Article 1165, U.S. Navy Regulation by attempting to have an unduly familiar relationship with a Pvt.
         Article 92 (Failure to obey order or regulation) 4 specifications
         Specification 1: O/A 20130803 at or near Marine Corps Base Camp Pendleton, CA, SNM violated a lawful general order by wrongfully asking for dates and texting a PFC.
         Specification 2: O/A 20130727 at or near Marine Corps Base Camp Pendleton, CA, SNM violated a lawful general order by asking a Pvt to his room and attempting to kiss her.
        

         Specification 3: O/A 20130727 at or near Marine Corps Base Camp Pendleton, CA, SNM violated a lawful order not to consume alcohol in or around Barracks 1398.   
         Specification 4: O/A 20130803and 20130804 at or near Marine Corps Base Camp Pendleton, CA, SNM violated a lawful order not to consume alcohol in or around Barracks 1398.
         Article 128 (Assault) 2 specifications
         Specification 1: O/A 20130727 at or near Marine Corps Base Camp Pendleton, CA, SNM unlawfully grabbed a PFC on the arm with his hand.
         Specification 2: O/A 20130803 at or near Marine Corps Base Camp Pendleton, CA, SNM unlawfully grabbed a PFC on the arm with his hand.
         Sentence: FOP CONF, 54days (Credited with 54 days pretrial confinement 130806-2013092)
         [CA approved and ordered the sentence executed on 20131007]

SPCM: NONE

CC: NONE

Retention Warning Counseling: 3

- 20090224:      For deficiencies resulting in NJP on 20090224 for Article 89 (Disrespect toward superior commissioned officer) and Article 134 (General article, Disorderly conduct, drunkenness).

- 20090421:      For not meeting established weight/body composition standards.

- 20100125:      For BCA extension of six months to meet established weight standards set forth in MCO 6101.1.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 warrants an upgrade because he has proven his dedication.
2.       The Applicant contends that he requested a board but was pushed out without getting the opportunity. The Applicant decided to EAS and request a board afterwards to benefit incoming Marines during the drawdown.

Decision

Date: 20150225 DOCUMENTARY REVIEW      Location: Washington D.C.        Representation: NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS) .
By a vote of 5-0 the Narrative Reason shall remain COMPLETION OF REQUIRED ACTIVE SERVICE .


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 his discharge and the discharge process to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included three 6105 counseling warnings, two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 89 (Disrespect toward superior commissioned officer), Article 134(General article, Firearm, discharging - through negligence), and Article 134 (General article, Disorderly conduct, drunkenness); and one summary court-martial (SCM) for violations of the UCMJ: Article 80 (Attempts), Article 92 (Failure to obey order or regulation), and Article 128 (Assault). The Applicant’s record and DD214 reflect discharge due to completion of required active service.

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that he warrants an upgrade because he has proven his dedication. The Applicant provided copies of his awards, citations and volunteer work with his application.
In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. In this case, the Applicant’s record contained two NJPs and one SCM for violations of the UCMJ. Based on the offenses committed by the Applicant, the command notified the SNM on 13 February 2014 using a NAVMC 118 (Administrative Remarks) form that he would be separated with a reenlistment code of RE-4 due to a Pattern of Misconduct, and the characterization of service would be General Under Honorable Conditions. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. A General Under Honorable Conditions discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Violations of UCMJ Article 80, 89, 92, and 128 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. The NDRB determined the Applicant’s conduct is appropriately categorized. Relief denied

Issue 2: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that he requested a board but was pushed out without getting the opportunity. The Applicant decided to EAS and request a board afterwards to benefit incoming Marines during the drawdown. The Applicant was separated at the end of his obligated service. The command notified the Applicant in writing of the pending separation on 13 February 2014. An administrative separation board is not part of normal processing for separation at the end of obligated service. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the proceedings. 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 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.

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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE. 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