ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080418
Characterization of Service Received:  
Narrative Reason for Discharge:  UNACCEPTABLE CONDUCT
Authority for Discharge:  MARCORSEPMAN PARA 4102 AND secnavinst 1920.6b

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

Summary of Service

Prior Service:
Inactive: USMCR	 19940613 - 19970406  		Active:   19940122-19940612 HONORABLE

Period of Service Under Review:
Date of Entry: 19970407		   Period of Enlistment:  N/A		Date of Discharge:  20011023
Length of Service:  4  Yrs  6  Mths  17  Dys	Education Level:  	Age at Enlistment:  	AFQT:  63
MOS:  0402  	Highest Rank:  1stLt 			Fitness Reports:  
Awards and Decorations (per DD 214):  Rifle:  x4, Pistol:  x4, , , , SecNav Ltr of Commendation.

NJPs:	
	20001019:  Article 89 (Disrespect),
                                 Article 133 (Conduct unbecoming), 3 specifications, 
                                 Article 134 (Fraternization).
	                   Awarded - Punitive Letter of Reprimand, FOP ($500 for 2 months).

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  
Other Records:  
	Copy of PTA dated 29 SEP 2000.
	Two FITNESS Reports.
	
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:  
-	Ltr from Ranking Member of the Senate Armed Services Committee to the Legislative Assistant to CMC dated 15  
       FEB 2001.
Other Documentation (Describe)  
-	Employment Verification and Contributions letter from G. S., Enterprise Rent-A-Car of Hawaii Area Manager  
       dated 6 MAY 2008.
-      13 performance awards from Enterprise Rent-A-Car with various dates.

Discharge Process

20000830:	Art 32 Investigation [NFIR].

20000929:	Pre-Trial Agreement [NFIR - Copy provided by applicant].

20001013:	Applicant submits Qualified Letter of Resignation [NFIR].

20001019:	Commanding General, Marine Corps Base Hawaii NJP -- Viol UCMJ Art 89 (Disrespect), Art 133 (Conduct unbecoming) x3, Art 134 (Fraternization).
	Awarded - Punitive Letter of Reprimand, FOP ($500 for 2 months).

20001106:	Commanding General, Marine Corps Base Hawaii writes Punitive Letter of Reprimand

20001107:	Commanding General, Marine Corps Base Hawaii endorses Punitive Letter of Reprimand.  Applicant does not appeal Letter but does desire to submit a statement.

20001108:	Applicant submits personal statement in response to Punitive Letter of Reprimand.

20001109:	Report of NJP provided to Applicant for review.

20001115:	Applicant chose not to appeal NJP or to make any further statement.

20001109:	Commanding General, Marine Corps Base Hawaii reports NJP to CMC (JAM).  Recommends acceptance of Letter of Resignation and he not be required to show cause for retention at a BOI.  Recommends General (Under Honorable Conditions) characterization of discharge.

20010129:	DC (M&RA) reviews report of NJP and directs Applicant to show cause for retention at a Board of Inquiry.

20010507:	Report of BOI held 20010410.  Board found allegations of substandard performance of duty and misconduct were substantiated and recommended a discharge with an under other than honorable conditions characterization of service with one member recommending a General (Under Honorable Conditions) characterization of service [Minority report NFIR].

20010510:	Applicant's counsel acknowledges report and notes deficiencies [Memorandum not in record].

20010523:	Commanding General, Marine Corps Base Hawaii endorses report.  Notes the Counsel's comments regarding report restate "arguments and suggestions addressed in the course of the Respondent's Article 32 investigation and the Board of Inquiry".  CG concurred with findings and recommendations.

20010717:	DC (M&RA) endorses report.  He concurred with BOI and recommends separation with an under other than honorable conditions characterization of service.  Forwards to ASN (M&RA) for approval.

20010918:	ASN (M&RA) approves discharge.

20011023:	Applicant discharged with an under other than honorable conditions characterization of service. 

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

Applicant’s Issues

1. Reentry code change.
2. Isolated incident.
3. Violation of pretrial agreement.
4. Unfair treatment by command.

Decision

Date:  20080729		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  Unacceptable Conduct.

Discussion

:  either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specially the paragraph concerning s regarding .

 ():   .  The Applicant stated his discharge was based on one isolated incident.  For the edification of the Applicant, despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline.  The Applicant's service was marred by imposition of non-judicial punishment for violations of the Uniform Code of Military Justice (UCMJ), Article 89 (Disrespect); Article 133 (Conduct unbecoming), 3 specifications; and Article 134 (Fraternization).  It should be noted these violations included: 1) Disrespect to a superior commissioned officer and using derogatory language about the superior to include statements indicating the Applicant would cause direct harm against the officer in question if they were ever deployed together into the Middle East; 2) Falsely representing himself to two junior Marines as a recruiter for the Central Intelligence Agency or an Interrogator Translator Team; and 3) Fraternization with a junior enlisted Marine.  These are considered serious offenses for which the Applicant could have received a dismissal and imprisonment if adjudicated by a General Court Martial.  The Applicant's conduct, which forms the primary basis for determining the character of service, reflects the Applicant's willful failure to meet the requirements of the Naval Service and those expected of an officer of the Marine Corps.  The Board determined an upgrade to the Applicant's discharge would be inappropriate.

 ():   .  The Applicant contends his discharge was improper because it was in violation of the Pre-Trial Agreement (PTA) he entered into with the Convening Authority (CA).  Under this Agreement the CA would withdraw charges for violations of the UCMJ for which the applicant did not plead guilty and the Applicant would then agree to plead guilty to violations of Articles 89, 133, and 134, and be the subject of a NJP.  Additionally, he would agree to tender his qualified resignation in lieu of further processing for an administration separation for cause.  Once the NJP was completed it was agreed the Applicant would then be processed for separation from military service.  While the Applicant requested to be discharged with an “Honorable” characterization he acknowledges in his PTA that he may receive a “General (Under Honorable Conditions)” discharge.  The CA, per the requirements set out in paragraph 4003 of MCO P5800.16A (Marine Corps Manual for Legal Administration) forwarded the report of NJP to CMC (JAM), with the recommendation the applicant's letter of resignation be accepted and the Applicant be discharged with a “General (Under Honorable Conditions)” characterization of service.  

The NDRB determined the CA fulfilled its PTA obligation as no further punitive actions against the Applicant was taken, as agreed upon.  However, the CA is not the adjudicating authority in the discharge of Navy and Marine Corps officers; this authority rests with the Assistant Secretary of the Navy (Manpower and Reserve Affairs), (ASN (M&RA)).  The Deputy Commandant, Manpower & Reserve Affairs (DC (M&RA)), chose not to accept the Applicant's resignation and required the Applicant to show cause for retention at a Board of Inquiry (BOI).   The BOI, held on 10 April 2001, found the allegations and misconduct of the Applicant were substantiated and recommended an “Under Other Than Honorable Conditions” discharge.  DC, M&RA concurred and forwarded the BOI's recommendation to the ASN (M&RA); ASN (M&RA) reviewed, concurred, 

and approved the discharge as recommended by DC, M&RA.  The Applicant was subsequently discharged with an “Under Other Than Honorable Conditions” discharge.  The discharge process was proper and the CA upheld, to the best of its ability, the PTA.  The NDRB determined an upgrade would be inappropriate.  

Issue 4 (Propriety/Equity):  RELIEF NOT WARRANTED.  The Applicant contends he was treated unfairly by his command.  As evidence, the Applicant provides a letter from the Ranking Member of the Senate Armed Services Committee to the Legislative Assistant to the Commandant of the Marine Corps asking for an investigation into an apparent inappropriate counseling given to the Applicant by his command’s former executive officer.  However, this letter does not prove unfair treatment it only proves a complaint was lodged with the Congressmen’s office who then requested an investigation.  There is no evidence in the record to indicate the applicant was unfairly treated, inappropriately counseled, or singled out by his command for punishment or ridicule.  It should also be noted there was no evidence of record on the response sent back to the Congressmen who requested the investigation.  However, what is documented is the Applicant's misconduct as evidenced by an Article 32 investigation, the non-judicial punishment, and the conclusion of the BOI.  As a result, the NDRB determined an upgrade would be inappropriate.  

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 

Pertinent Regulation/Law

A.  Paragraph 4102 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until present.

B.  Secretary of the Navy Instruction 1920.6B (Administrative Separation of Officers), effective 13 December 1999 until present.

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.

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