ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      19991215 - 20000723     Active:  20000724 - 20031105
                           Active:  20031106 - 20070426
                           Active:  20070427 - 20101118

Period of Service Under Review:
Date of Current Enlistment: 20101119    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20130109     Highest Rank:
Length of Service: Year(s) Month(s) 22 Day(s)
Education Level:        AFQT: 67
MOS: 7041
Proficiency/Conduct Marks (# of occasions): Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol JSCM (combat V) (3 ^rd award) (2) (2 ^nd award) (4 ^th award) ACM (2 ^nd award) (1 brz star) (6 ^th award) (2 ^nd award) MSGR CoA LoA (2) MM (2)

Periods of UA:

NJP:

SCM:

SPCM:

- 20121109:      Article 80 (Attempts) Attempted sexual contact; NG, but found Guilty of the lesser included offense of Article 128 (Assault, consummated by battery)
         Sentence: 100 days (20120831 – 20121108, 70 days) 45 days REPRIMAND
         CA: In the Special Court-Martial case of the United States v. Staff Sergeant Anthony C. Bynum, U.S. Marine Corps, the sentence as adjudged is approved.

CC:

Retention Warning Counseling:

- 20120831:      For suspected violations of Article 120 and 128 of the UCMJ, which led to your arrest by military police on 20120829.




Administrative Corrections to the Applicant’s DD 214

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

         “MISCONDUCT”
         “(70) 20120831 – 20121108”

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:        

Types of Witnesses Who Testified

         Expert:           Character:      

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 128.

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

Applicant’s Issues

1.       The Applicant wants better employment opportunities and to possibly reenlist.
2.       The Applicant contends his discharge is inequitable because it is based on an isolated incident of misconduct in over 12 years of service.
3.       The Applicant contends that traumatic events during his last deployment to Afghanistan, and personal family stress, were the underlying cause for his misconduct.


Decision


Date: 20150806           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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warning, and and for of the UCMJ: Article 128 (Assault, consummated by battery). The Applicant signed a pre-trial agreement to plead guilty at SPCM to violation of Article 128, and waive his right to an administrative board. Based on the offense(s) 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, and submit a written statement, but waived his right to request an administrative board.

: (Nondecisional) The Applicant wants better employment opportunities and to possibly reenlist. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or reenlistment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) () . The Applicant contends his discharge is inequitable because it is based on an isolated incident of misconduct in over 12 years of service. The Applicant originally enlisted into the Marine Corps in July 2000. His DD Form 214 reads in block 18 of the remarks section: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20000724 UNTIL 20100118.” The Applicant is eligible for full Veterans Affairs benefits based on his Honorable period of service. The Applicant’s record shows that during this period of Honorable service his average proficiency and conduct marks were 4.7 and 4.7, respectively. The Applicant served a special duty assignment as Marine Corps Embassy Security Guard and was awarded for Heroism by the United States State Department for his actions during a terrorist attack on 6 December 2004 at the U. S. Consulate in Jeddah, Saudi Arabia. The Applicant also received the Navy and Marine Corps Commendation Medal for Valor for his actions on 6 December 2004. The Applicant served combat deployments in support of Operation ENDURING FREEDOM from September 2001 to March 2002, and from December 2011 to June 2012, as well as a combat deployment to Iraq in support of Operation IRAQI FREEDOM from February to May 2003. The Applicant was awarded three Navy and Marine Corps Achievement Medals, and a Joint Service Commendation Medal for professional achievement in the superior performance of his duties in 2003, 2006, 2011, and 2012, respectively. The Applicant reenlisted for his fourth enlistment on 19 January 2010, and it is during this enlistment that his misconduct occurred on 29 August 2012, and led to his court-martial and administrative discharge with Under Other Than Honorable Conditions. After a review of the Applicant’s entire service record, and a review of the Applicant’s sentence at court-martial that did not include discharge, the NDRB voted unanimously for partial relief by changing the Applicant’s characterization of service for the current enlistment to General (Under Honorable Conditions). The narrative reason for discharge will remain as Misconduct. Partial relief granted.

: (Decisional) () . The Applicant contends that traumatic events during his last deployment to Afghanistan, and personal family stress, were the underlying cause for his misconduct. In accordance with the MILPERSMAN, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The Applicant pleaded guilty at a SPCM for violation of Article 128. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. While the Applicant may feel that his family difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service. As the Applicant was granted partial relief with a General (Under Honorable Conditions) discharge for Issue 2, the NDRB did not find this issue warranted an upgrade of his discharge to Honorable. 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 change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .

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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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