ex-LCpl, 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)      20010926 - 20020821 COG         Active:  USMC 20020822-20070306 HON

Period of Service Under Review:
Date of Current Enlistment: 20070307    Age at Enlistment: 17 (PARENTAL CONSENT)
Period of Enlistment: 4 Years 0 Months
Date of Discharge: 20101108     Highest Rank: SERGEANT
Length of Service: 03 Year(s) 08 Month(s) 02 Day(s)
Education Level: 12     AFQT: 80
MOS: 6541
Fitness Reports: AVAILABLE

Awards and Decorations (per DD 214):     Rifle EX Pistol EX GCM ICM(2) SSDR(2) GWOTSM NDSM NUC(2) MUC MM

Periods of UA: NONE

NJP: 1

- 20081002:      Article 92 (Failure to obey order or regulation; O/A 20080901 in Havelock, NC, SNM disobeyed a MPO by causing a disturbance at his wife’s residence.)
         Awarded: RIR FOP RESTR EPD Suspended: FOP

SCM: NONE

SPCM: 1

- 20090501:      Article 121 (Larceny and wrongful appropriation) 5 specifications
         Specification 1: Wrongful stealing of property, owned by Cpl C_.
         Specification 2: Wrongful stealing of property, owned by LCpl F_.
         Specification 3: Wrongful stealing of property, owned by Cpl S_.
         Specification 4: Wrongful stealing of U.S. currency, belonging to Cpl S_.
         Specification 5: Wrongful stealing of U.S. currency, belonging to Cpl S_.
         Sentence: RIR E-3 CONF 80 days (20090501-20090705 , 66 days)
         [CA approved sentence to be executed on 20090902]

CC: NFIR

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Retention Warning Counseling: 7

- 2003XXXX       For unauthorized possession/use of barracks master key aboard MCAS Futenma.

- Undated:       For violations of Article 92 (Failure to obey order or regulation) and 134 (General Article, Reckless endangerment) for speeding and reckless driving O/A 20030222.

- 20041204:      For substantial spousal abuse.

- 20081002:      For deficiencies resulting in NJP on 20081002 and violating a MPO O/A 20080901.

- 20100121:      For Pattern of Misconduct and Commission of a Serious Offense (Civil Arraignment).

- 20100205:      For violation of MPO O/A 20100109 by contacting a fellow Marine Sgt by telephone.

- 20100617:      For violations of Article 91(Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) for disrespect towards a SNCO, and Article 92 (Failure to obey order or regulation) for not wearing PPE on a motorcycle.

Administrative Corrections to the Applicant’s DD 214

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

         Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 020822 UNTIL 070307”

The NDRB will recommend to the Commandant of the Marine Corps 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 was wrongly accused and has subsequently been cleared of all charges which led to his unfavorable character of service determination.

Decision

Date: 20150225  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 Board did complete a thorough review of the circumstances that led to the discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included seven 6105 counseling warnings, one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation); and one special court-martial (SPCM) for violation of the UCMJ: Article 121 (Larceny and wrongful appropriation, 5 specifications). Based on the offenses committed by the Applicant, his 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 request and administrative board. He waived his rights to submit a written statement.

Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends that he was wrongly accused and has subsequently been cleared of all charges which led to his unfavorable character of service determination. The Applicant contends the current discharge is an embarrassment to himself and the Marine Corps and noted that he served in Iraq for nine months and received the Marine Corps Good Conduct Medal, two awards. The Applicant provided a record from District Court of Craven County, NC, documenting the dismissal of second degree kidnapping charges against him as well as a notarized personal letter of reference. The Applicant successfully completed his first enlistment which included a combat tour with an Honorable characterization of service. However, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period; the Applicant was discharged from his second enlistment under separation code GKAI for a Pattern of Misconduct. The NDRB reviewed the Administrative Separation Board’s findings, and the discharge was based on a documented history of substandard conduct including one NJP, one SPCM, and numerous counseling sessions spanning the period of enlistment. The discharge characterization was not based on the single incident that resulted in the civil arraignment for kidnapping which was subsequently dismissed when the court could not make contact with the victim. The characterization of service for a pattern of misconduct is normally under other than honorable conditions. The Board’s review of the record indicates the Applicant’s conduct does involve one or more acts or omissions that constitute a significant departure from the conduct expected from the Naval Service. 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