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)      20010828 - 20011029     Active:  20011030 – 20060102 HON

Period of Service Under Review:
Date of Current Enlistment: 20060103    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20070724     Highest Rank:
Length of Service: Year(s) Month(s) 21 Day(s)
Education Level:        AFQT: 53
MOS: 0311
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle (w/1 Star) LoA

Periods of UA: 20060621-20060622, 2 days, 20060623-20060627, 5 days, 20060629-20060726, 27 days/CONF:
IHCA: 20060726-20070724, 364 days

NJP:

- 20060524:      Article 0630, 20060515 until 1200, 20060519, 4 days
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

- 20060725:      Charges: Robbery, Kidnapping, exhibiting a firearm, and force with a deadly weapon

CC:

- 20061219:      Offense: Concealed Fiream and Attempts, specifically Robbery
         Sentence: 3 years in jail, fines of $800.00, and restitution for the amount of $1916.45

Retention Warning Counseling:

- 20060623:      For illegal drug related incident on 20060519 specifically, THC 39ng, usage identified through urinalysis and confirmed by NAVDRUGLAB MSG F00992952.

- 20060628:      For Company Level NJP on 20060524 for being UA from 20060515-20060519.

- 20061003:      For Misconduct due to Commission of a Serious Offense. On 20060725 you were arrested for Robbery, Kidnapping, exhibiting a firearm, and force with a deadly weapon. On 20061004 you agreed to plead guilty to PC664/211 and PC10222 (a) for custody of a concealed firearm, attempts specifically Robbery as listed in the Police Report dated 20060725.

Administrative Corrections to the Applicant’s DD 214

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

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 011030 UNTIL 060102”
         “(4) 20060515-20060519, (2) 20060621-20060622, (5) 20060623-20060627 (364) 20060726-20070724”
        
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 violations of the UCMJ, Articles 80, 122.

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

Applicant’s Issues

1.       The Applicant contends his discharge is inequitable because he did not willfully absent himself from his command but was arrested and held by civilian authorities.
2.       The Applicant contends his discharge is inequitable because he had a period of Honorable service from October 2001 until January 2006 prior to his misconduct.

Decision


Date: 20150903           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 warnings; for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; 4 days); and civilian arrest and conviction for attempts – specifically robbery, and carry of concealed firearm. 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, submit a written statement, and request an administrative board.

: (Decisional) () . The Applicant contends his discharge is inequitable because he did not willfully absent himself from his command but was arrested and held by civilian authorities. The Applicant’s record shows that he pleaded guilty in civilian court on charges of carrying a concealed firearm, and robbery attempts. The Applicant was held in the hands of civilian authorities by his own actions, and was therefore absent from his command without authority. In addition, the Applicant had absented himself from his command without authority in May, June, and July 2006; and tested positive for marijuana and ecstasy on three separate urinalysis tests during this period. The Applicant was arrested on 26 July 2006 by civilian authorities for kidnapping and robbing a female civilian cash attendant at gunpoint. The Applicant was sentenced by a civilian court to serve three years in confinement. Relief denied.

: (Decisional) () . The Applicant contends his discharge is inequitable because he had a period of Honorable service from October 2001 until January 2006 prior to his misconduct. The NDRB noted an administrative error on the Applicant’s DD Form 214 that did not recognize the Applicant’s first enlistment and period of Honorable service from 2001 until 2006. The NDRB has recommended CMC make a correction to the Applicant’s DD Form 214 to recognize his Honorable period of service. However, for the current enlistment ending on 24 July 2007 the NDRB determined the Applicant’s misconduct warranted an Under Other Than Honorable Conditions discharge. 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