ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090928
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)	20030718 - 20040607  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20040608	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080822	Highest Rank:  
Length of Service:    Year(s)    Month(s)  12  Day(s)
Education Level:  	AFQT:  33
MOS:  0311/8152
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol      (X2), LOA

In Hands of Civilian Authorities: (4 days) 20080328 - 20080331

NJP:  

 20080229:	Article  , 1 specification
	Specification 1: Dereliction in performance of duties at MCSF Regt, Bldg U-112, 13 Feb 2008
	Article 113, 1 specification
	Specification 1: Misbehavior of sentinel or lookout: Sleeping on post at MCSF Regt Bldg U-112, 13 Feb 2008. 
	Awarded:   (14 Days)  Suspended:    (7 Days)

SCM:  		SPCM:  

Retention Warning Counseling:  

- 20080214:	Member advised that he was being processed for administrative separation from the service IAW MARCORSEPMAN, para 6203.2 (Convenience of the Government, Condition not a Disability) (Chronic Patella Femoral Knee Syndrome (PFS)).

- 20080229:	For NJP on 20080229 (violation of articles 92 and 113 of the UCMJ).  Member advised that failure to take corrective action my result in further judicial or adverse administrative action, including, but not limited to, administrative separation.  

- 20080403:	Member advised that he was being processed for administrative separation from the service IAW MARCORSEPMAN para 6210.6 (Misconduct – Commission of a Serious Offense) related to recent arrest by local civilian authorities on 28 Mar 2008 resulting from content found on his personal computer hard drive.   

Administrative Corrections to the Applicant’s DD 214

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

  “DISCHARGED”
	  “UNDER OTHER THAN HONORABLE CONDITIONS”

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:	

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual (MCO P1900.16E), Paragraph 6210, MISCONDUCT, 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 violation of the UCMJ, Article 113.

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

Applicant’s Issues

1.	Nondecisional issues: None

2.	Decisional issues: (Equity) Applicant requests an upgrade of his characterization of service to General, Under Honorable Conditions due to his overall Military Service, achievement of rank in service (Cpl), and his sustained Proficiency and Conduct Marks, both in grade and in service.
Decision

Date:  20100819		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 identified one decisional issue to the board.  The Board completed a thorough review of the Applicant’s military service record, medical records, the circumstances that led to his discharge, and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.    

The Applicant’s record of service included  retention-counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to Obey an Order or Regulation – specifically, dereliction in the performance of his duties) and Article 113 (Misbehavior of a Sentinel or Lookout – specifically, sleeping on post).  Additionally, the applicant’s service reflected one civilian arrest on 28 March 2008 by local civilian authorities for possession of child pornography - a violation of Federal law (Title 18, USC, Part 1, Chapter 110, USC 2252A) and State Statute (VA Code Sect 18.2-374.1:1).  This offense was also chargeable under the UCMJ, Article 134, General Clause 3 - conduct of nature to bring discredit upon the armed forces (i.e., possession of child pornography in violation of 18 U.S.C. § 2252A) .  

:  (Decisional) ()  .  The Applicant contends his discharge should be upgraded based on his record of service, which was honorable apart from a single period of misconduct, his attaining the rank of Corporal, a Non-Commissioned Officer, and his overall proficiency and conduct marks in grade and service, which were above a 3.0/4.0, thereby demonstrating his honorable service.  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 provided no documentation to the board other than that which is already part of his official military service record.

Whenever a Marine is involved in misconduct, as described in paragraph 6210.6 of the MARCORSEPMAN, commanders are directed to process the Marine for separation, unless rehabilitation and retention are warranted.  The characterization of service for misconduct normally shall be Under Other Than Honorable Conditions, but characterization as General (Under Honorable Conditions) may be warranted in some circumstances.  The Applicant’s record of service was marred by one non-judicial punishment for violation of the UCMJ, Articles 92 and 113, and three retention warnings.  In addition, the Applicant had been arrested and was pending prosecution by local civilian authorities for possession of child.  This offense was chargeable under the UCMJ, Article 134, General Clause 3 - conduct of nature to bring discredit upon the armed forces (i.e., possession of child pornography in violation of 18 U.S.C. § 2252A).

Specific to the Applicant’s issue, paragraph 6210.6 of the MARCORSEPMAN provides a basis for separation of a Marine by the commission of a serious military or civilian offense under the following circumstances: (1) when the specific circumstances of the offense warrant separation; and, (2) a punitive discharge would be authorized for the same or a closely related offense under the UCMJ.  This provision of the MARCORSEPMAN further specifies that a military or civilian conviction is not required for discharge.  Since civilian authorities were prosecuting the Applicant for a closely related UCMJ offense, which warranted punitive discharge, the recommendation and process for discharge by administrative separation was proper and equitable.  

When notified of the administrative separation process using the board  procedure, the Applicant exercised his right to consult with a qualified counsel and his right to submit a written statement and further elected that an administrative discharge board hear his case.  The administrative discharge board was convened and recommended the Applicant be separated for Misconduct - Commission of a Serious Offense - and that the characterization of service be Under Other Than Honorable Conditions.  As required by paragraph 6308.1 of the MARCORSEPMAN, a Staff Judge Advocate reviewed the findings and recommendations and determined them to be sufficient in law and fact.  The General Court Martial Convening Authority approved the findings and recommendations of the board and directed discharge as recommended.  

The Applicant requests an upgrade in his characterization of service to General (Under Honorable Conditions).  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  A discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  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.  Violation of Article 113 and 134 of the UCMJ are considered serious offenses, punishable by a punitive discharge and confinement if adjudicated by a special or general court-martial.  The Applicant’s command did not pursue a punitive discharge for either the Article 113 or 134 violations of the UCMJ but opted instead for the more lenient administrative discharge.  The Administrative Discharge Board members determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member.  Therefore, they recommended that the characterization of service reflect that significant departure with an Under Other Than Honorable Conditions characterization. 

The awarded characterization was appropriate, proper, and equitable; an upgrade would be inappropriate.
  
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   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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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 Disabled 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), 2 Navy Annex, Washington, DC 20370-5100 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:  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 BCNR can make changes to reenlistment codes.  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