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)      19960829 - 19961103 COG         Active:  USMC 19961104 – 20010315 HON
                                    USMC 20010316 – 20030803 HON
                                    USMC 20030804 – 20070328 HON
                                    USMC 20070329 – 20100913 HON

Period of Service Under Review:
Date of Current Enlistment: 20100914    Age at Enlistment: 33
Period of Enlistment: 4 Years 0 Months
Date of Discharge: 20130609     Highest Rank: STAFF SERGEANT
Length of Service: 02 Year(s) 09 Month(s) 13 Day(s)
Education Level: 12     AFQT: 52
MOS: 6672
Fitness Reports: AVAILABLE

Awards and Decorations (per DD 214):     Rifle EX Pistol MM NMCAM(2) NUC MUC GCM(3) NDSM ICM GWOTSM SSDR Certificate of Commendation (Individual) (2) LOA (4) MM(3)

Periods of UA/CONF: NONE

NJP: NONE

SCM: 1

- 20110316:      Article 81( Conspiracy)
         Article 86 (Absence without leave) 3 specifications
         Article 107 (False official statements) 5 specifications
         Article 121 (Larceny) 5 specifications
                  Sentence: RIR E-5 RESTR
         [On 20110325 CA approved the sentence to be executed except for the reduction in rank which will be suspended for 3 months]

SPCM: NONE                CIVIL ARREST: NONE                CC: NONE

Retention Warning Counseling: 1

- 20121126:      For sexual harassment, inappropriate relations and fraternization as documented in command investigation.

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Administrative Corrections to the Applicant’s DD 214

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

         Block 26, Narrative Reason for Separation, should read: “MISCONDUCT”

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 P1900.16E), 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 134, Fraternization.

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

Applicant’s Issues

1.       The Applicant contends that his administrative discharge board was unjust and not based on factual documentation but hearsay.
2. The Applicant contends his discharge should be honorable based on his honorable discharges from previous enlistments and because the VA has determined that the period of service was honorable.

Decision


Date: 20150423          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 five 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 121 (Larceny), and one summary court-martial (SCM) for violations of the UCMJ: Article 81( Conspiracy), Article 86 (Absence without leave), Article 107 (False official statements), and Article 121 (Larceny). 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, submit a written statement, and request an administrative board.

Issue 1: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that his administrative discharge board was unjust and not based on factual documentation but hearsay. The Applicant did not provide any documentation to support this contention. The Applicant was separated using administrative separation board procedures. He was notified of separation processing using the administrative board procedure on 28 November 2012 based on misconduct and the commission of a serious offense. The Applicant exercised his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board. The separation board examined charges for sexual harassment, inappropriate relations and fraternization using the results of a command investigation. Specifically, the Applicant was accused of misconduct with four different junior enlisted female Marines. The separation board, by majority vote, recommended separation with an other than honorable characterization based on the preponderance of evidence. That recommendation was endorsed up to the Commanding General of 3d Marine Aircraft Wing on 05 June 2013. Additionally a legal review was completed by the Staff Judge Advocate on 05 June 2013 and found the proceedings sufficient in law and fact to support administrative separation. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the discharge action. Relief denied.

Issue 2: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends his discharge should be honorable based on his honorable discharges from previous enlistments and because the VA has determined that the period of service was honorable. The Applicant provided the NDRB a copy of his VA determination of eligibility and copies of honorable discharges for previous enlistments. The Applicant completed his first four enlistment periods with an Honorable characterization of service for that period of service; however, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period. A military Service’s characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. Similarly, t he VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request. 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 at the time of discharge. 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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