ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080703
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 20000530 - 20000613  		Active:    20000614-20031008 HON
									 20031009-20060707 HON

Period of Service Under Review:
Date of Enlistment: 20060708	Period of Enlistment:   Years   Months	Date of Discharge:  20070309
Length of Service:   Years   Months  2 Days       Education Level:      Age at Enlistment:           AFQT:  35	
MOS:  3531 (Motor Vehicle Operator)         Highest Rank:           Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):	   /  
Awards and Decorations (per DD 214):  Rifle        

Periods of UA/CONF: 

6105 Counseling:  
20061018:  For an inappropriate relationship with a student.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
  “20000614”
	  “06 Yrs 08 Mths 11 Dys”
	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20000614 UNTIL_20060707”
	  “(13) 20040825 - 20040908”

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):   

Pertinent Regulation/Law

A   Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, 
Paragraph 6419.

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 92 and 134, Failure to obey orders or regulations and Adultery, respectively.

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

Applicant’s Issues
1.  Improper reduction in rank.
2.  Isolated incident compared to record of service.

Decision

Date:  20081002           	Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  IN LIEU OF TRIAL BY COURT-MARTIAL.

Discussion

:  ()  .  The Applicant contends he was improperly reduced in rank with regards to his separation in lieu of trial by court-martial.  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 his inappropriate relationship with a student.  The Applicant was pending trial by court martial for violations of the Uniform Code of Military Justice (UCMJ), Article 92 (Failure to obey an order or regulation) and Article 134 (Adultery).  Violations of UCMJ Article 92 and Article 134 are considered serious offenses for which a punitive discharge is authorized if adjudged and awarded by a Special or General Courts Martial.  Marines may be separated upon their request in lieu of trial by special or general courts-martial if charges have been preferred with respect to an offense for which a punitive discharge is authorized and it has been determined that the Marine is unqualified for future military service.  The Applicant, after consultation with Defense Counsel, voluntarily signed the request to be released from the military in lieu of trial by court-martial.  Per MCO P1900.16F (MARCORSEPMAN), paragraph 1004.2C.3, which clearly states, “When an enlisted Marine serving in pay grade E-4 or above is administratively separated with an ‘Under Other Than Honorable’ characterization of service, the Marine shall be administratively reduced to pay grade E-3, with such reduction to become effective upon separation.”  The Board determined the rank reduction was within established policy and procedures and an upgrade would be inappropriate.

:  ()  .  The Applicant contends his discharge should be upgraded based on his record of service which was good apart from a single period of misconduct.  For the edification of the Applicant, despite a Marine’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.  As referenced above, the Applicant had charges preferred against him reflecting adultery and failure to obey an order or regulation but feels he deserves an “Honorable” discharge.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  An “Under Other Than Honorable Conditions” discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  The fact that 2 serious charges were preferred against the Applicant constitutes a significant departure from the expected conduct of a U.S. Marine.  As such, the Board 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 

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