ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to: CONDITION NOT A DISABILITY
         Reentry Code change to: NOT REQUESTED

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      19980817 - 19990815     Active: 

Period of Service Under Review:
Date of Current Enlistment: 19990816    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20020201     Highest Rank:
Length of Service: Year(s) Month(s) 17 Day(s)
Education Level:        AFQT: 42
MOS: 8152
Proficiency/Conduct Marks (# of occasions): /   Fitness Reports:

Awards and Decorations (per DD 214):     NONE

Periods of UA/CONF:

NJP:     SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20001004:      For substandard physical performance as evidenced by your lack of strength and endurance. Your physical condition interferes with the effective performance of duties.

- 20010416:      For inability to perfom to the physical standards required of a U.S. Marine. This includes the ability to complete and pass the Marine Corps PFT and participate in Company Physical Fitness Training.

Administrative Corrections to the Applicant’s DD 214

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

         “1999 08 16”
         “02 05 17”
“”
         “IN LIEU OF TRIAL BY COURT-MARTIAL”

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. A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

C. 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 there is no evidence to support or warrant a court martial, NJP, or other disciplinary action.
2.       The Applicant contends his misconduct was allegedly based on an isolated incident in 30 months of service.
3.       The Applicant contends he was in a light duty status and should not have been standing post.
4.       The Applicant contends he was singled out and bullied by senior members of the chain of command.
5.       The Applicant contends his command demonstrated an inability to follow military policies and procedures.
6.       The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

Date: 20150820           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 Applicant’s record of service included 6105 counseling warnings. The NDRB did not have the Applicant’s administrative separation package as it was not included in his service record. However, the Applicant was not taken to court-martial but was administratively separated from the Marine Corps after requesting separation in lieu of trial by court-martial (SILT). Per regulations, to attain approval for a Separation in Lieu of Trial by Court Martial (SILT) request, servicemembers must have been afforded the opportunity to consult with a qualified counsel and submit a written statement. They must also fully understand the elements of the offense(s) for which they were charged, and they must admit their guilt. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions, which might deprive them of virtually all veterans benefits based upon their current enlistment.

: (Decisional) () . The Applicant contends there is no evidence to support or warrant a court martial, NJP, or other disciplinary action. The Board requested a copy of the Applicant’s medical treatment records and received a copy of those records from the Department of Veterans Affairs (VA). During the Applicant’s pre-confinement medical screening, dated 01 September 2015, the doctor noted that the Applicant “made a threat against another Marine […] when pissed off.” The pre-confinement medical screening was not included with the medical documentation the Applicant submitted to the Board. Furthermore, in his personal statement to the Board, the Applicant admits to falling asleep on watch. Despite the lack of evidence of misconduct in the Applicant’s service record, through his own admission of guilt in his personal statement and from the evidence found in his medical record, the Board presumes regularity of governmental affairs. As such, the Board presumes that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense(s) for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense(s); and that the Applicant had a complete understanding of the negative consequences of his actions. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any documented evidence for the NDRB’s consideration, to support the contention the Applicant deserves an upgrade in characterization. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

: (Decisional) () . The Applicant contends his misconduct was allegedly based on an isolated incident in 30 months of service. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service to maintain proper order and discipline. Falling asleep on watch and threatening the life of another Marine are such offenses which have the potential to result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Board presumes that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense(s) for which he was charged fully explained by counsel; that the Applicant admitted guilt to the offense(s); and that the Applicant had a complete understanding of the negative consequences of his actions. 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.

: (Decisional) () . The Applicant contends he was in a light duty status and should not have been standing post. In the Medical Board/Physical Evaluation Board summary, dated 20 August 2001, which is the most recent medical evaluation prior to the Applicant’s stated misconduct, the Applicant was placed in a limited duty status and directed to “have no PRTs and no prolonged running, jogging or heavy lifting, and the patient is not to be deployed at this time.” In the Applicant’s Non-Medical Assessment, dated 09 September 2001, his commanding officer stated that the Applicant was working in his MOS but “limited in the posts he can stand due to his condition.” The medical evaluation and non-medical assessment both indicate that the Applicant was only limited in the duties to which he could be assigned, not that the Applicant was unable to perform watch-standing duties of any kind, contrary to Applicant’s claims that he should not have been standing post the night of the incident in question. Furthermore, the Applicant provided no evidence to support his contention that his post was improperly rotated the night of the incident. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

4: (Decisional) () . The Applicant contends he was singled out and bullied by senior members of the chain of command. The Applicant implies he was treated unfairly by his command and cites multiple retention warnings as examples of mistreatment. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. Regardless of whether or not the Applicant received retention warnings in a limited duty status, the evidence does not support the Applicant’s contention of unfair treatment nor does it mitigate the stated misconduct which led to Applicant’s SILT. Relief denied.

5: (Decisional) () . The Applicant contends his command demonstrated an inability to follow military policies and procedures. The Applicant contends he was wronged by his commanding officer and that resulted in his other than honorable discharge. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

6: (Decisional) () . The Applicant contends his post-service conduct is worthy of an upgrade. The NDRB considers 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. The Applicant provided a personal statement, evidence of financial stability, proof of continuous employment, various educational transcripts, a criminal records check, multiple certificates/certifications, and multiple character references. Post-service accomplishments not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. The Board determined that the documentation submitted by the Applicant is insufficient in demonstrating if in-service misconduct was an aberration. 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, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN 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