ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080115
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:

Inactive: USMCR (DEP) 19800719 - 19800906  		Active:    19800907 - 19840906  
								                19840907 - 19880627  
								                19880628 - 19920124  
								                19920125 - 19950719  
Period of Service Under Review:

Date of Enlistment: 19950720	   Period of Enlistment:   Years   Months	Date of Discharge:  19970502
Length of Service:    Year    Months   13  Days	Education Level:  	Age at Enlistment:  	AFQT:  62
MOS:  0311 / 0321 / 8654 / 8511 / 8563 / 0369	Highest Rank:  
Fitness reports:   FOR BOARDS REVIEW
Awards and Decorations (per DD 214):  Rifle  5 Pistol  6  4  4 NCM NDSM SWASM 3 OSR CAR NUC    
                                                                JMU KLM NAM KLM(K) LOA MM COC COA LOC

Periods of UA/CONF:       NJP:       SPCM:     CC:	    6105 Counseling: 

SCM:  1
- 19970328:  Article 125 (Commit sodomy with dependent female child under 16 years old)
	Article 134 (Commit an indecent act upon a female under 16 years of age)
	Sentence:  RIR FOP REST

Previous NDRB Review

NDRB Documentary Review Conducted (date):	19980831
NDRB Documentary Review Docket Number:	MD98-00459
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted

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 19840907 TO 19950719”

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 and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:  			Finances:  			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  

Other Documentation (Describe):   
		- Briefing book supplied by McNeil and Associates

Pertinent Regulation/Law

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
31 January 1997 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 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, Articles 125 and 134.

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

Applicant’s Issues

1.  Requesting an upgrade due to post service conduct.
2.  Desires narrative reason for discharge be changed from MISCONDUCT to SECRETARIAL AUTHORITY.

Decision

Date:  20081119	  Personal Appearance Hearing      Location:  Washington D.C.    Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

:  (Equity)  RELIEF WARRANTED.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service was marred by a SCM for violations of the Uniform Code of Military Justice (UCMJ):  Article 125 (Commit sodomy with dependent female child under 16 years old) and Article 134 (Commit an indecent act upon a female under 16 years of age).  These violations are considered serious offenses, punishable by a bad conduct or dishonorable discharge and up to twenty years imprisonment if adjudicated as part of the sentence upon conviction by a special or general court-martial.  The command did not refer the Applicant for a special or general court martial but opted to conduct a summary court martial where the Applicant was found guilty for violation of UCMJ Article 125 and Article 134.  As a result, he was awarded an “Under Other Than Honorable” discharge.   It was noted during the review the victim involved in this case did not pursue civil charges against the Applicant and did not provide testimony against him. 

The Applicant submitted his post service efforts and record of post service accomplishments for consideration by the Board.    The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that 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.  The key word here is “Outstanding”.  The Board is looking for actions that go beyond simply daily living.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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 company’s, or other financial institutions; 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 conduct mitigates the reason for the characterization of discharge. 

The Applicant produced documentation which showed his continued and determined commitment of obtaining employment in the law enforcement area during the eleven years since his discharge from the USMC.  Despite multiple challenges which he encountered as a direct result of his discharge character, the Applicant did not tire in his journey to obtain his goal.  He completed multiple law enforcement classes, personally paid to attend the Palomar College Police Academy and completed the U. S. Customs and Boarder Protection Field Operations Academy.  To further enhance his qualifications, the Applicant secured employment with the Anti-Crime Unit, a private security outfit, the Transportation Security Administration, and spent 19 months working on various civil affairs and security training details in Iraq.  The skills sets the Applicant possesses are valued and can contribute to our nation’s security.  The Applicant demonstrated stability in his personal life as evidenced by his marriage, support of his three children, financial solvency and home ownership.  Additionally, he is a very active participant in Calvary Chapel, where he routinely performs volunteer service.  Based on the above documented activities, the Board determined the documentation provided by the Applicant did mitigate the misconduct that resulted in the characterization of discharge and an upgrade to General (Under Honorable Conditions) would be appropriate. 

:  ()  .  The Applicant has asked the NARRATIVE REASON FOR SEPERATION be changed from MISCONDUCT to SECRETARIAL AUTHORITY.  The NARRATIVE REASON explains in plain English why a service member received the character of discharge assigned.  As stated above, the Applicant was the subject of a SCM and received an “Other Than Honorable Discharge” for sexual misconduct involving a minor child under the age of 16.

The Applicant did not provide witness statements or documentary evidence to show that his discharge character or the narrative reason was erroneous.  Quite the contrary, the Applicant fully admitted to his misconduct and expressed great remorse for his actions.  While the Board applauds the Applicant’s effort since leaving the Marine Corps and accepts his remorse over this isolated incident the Board determined the narrative reason for the discharge shall not change. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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