ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100223
Characterization of Service Received:    
Narrative Reason for Discharge:    UNACCEPTABLE CONDUCT
Authority for Discharge:   MARCORSEPMAN PAR 4102 SECNAVINST 1920.6

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19901221-19911006  	Active:	    19911007-19951006 
	USMCR 	19951007-19970213  		USMCR 19970214-19971218  (OCAN)
				    19971219-20020701 

Period of Service Under Review:
Date of current Appointment:  20020702	Age at Enlistment:  
Years Contracted:  Indefinite
Date of Discharge:  20090206	Highest Rank:  Capt
Length of Service:   Year(s)   Month(s)  05 Day(s)
Education Level:  	AFQT:  73
MOS:  0402
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Rifle (2nd Award) Pistol  (2) (2)  (w/ 1 bronze star) (5)  (3)    JSCM AAM KDSM LoA(3) CoC MM

NJP:  

SCM:  

SPCM:  

CC:  
- 20080512:	Offense:  Immigration violations: 2 counts
	Sentence:  $500.00 Fine

Retention Warning Counseling:  

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:		Substance Abuse:		Criminal Records:	
	Family/Personal Status: 		Community Service:		References:	
	Additional Statements:
		From Applicant:		From Representation:		From Congress member:	
	Other Documentation:	

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

Applicant’s Issues

1.  The Applicant contends her discharge is inequitable, because it was based on an isolated incident that happened 20 years ago.

Decision

Date:  20110414                   Location:  Washington D.C.          Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall change to .

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 a civilian conviction for violations of the United States Immigration Law.  The Applicant pled guilty in civilian court to passport fraud and engaging in a sham marriage to obtain citizenship.  The Applicant was fined $500.00 for her offenses.  Based on the offenses committed by the Applicant,  command directed her to show cause for retention at a Board of Inquiry (BOI).  The BOI convened on 29 May 2008 and determined that the preponderance of the evidence established that the Applicant had 1) intentionally made misrepresentations or omissions of material facts in official written documents or oral statements and 2) that she was convicted by civilian authorities for an action that is an offense under the Uniform Code of Military Justice (UCMJ).  The BOI recommended that she be separated from the Marine Corps with a General (Under Honorable Conditions) characterization.  This Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the recommendation and the Applicant was discharged on 6 February 2009.

:  (Decisional) ()  .  The Applicant contends her discharge is inequitable, because it was based on an isolated incident that happened 20 years ago.  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.  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.  After a thorough review of the records, testimony, supporting documents, facts, and circumstances unique to this case, the NDRB found that the discharge was proper, but not equitable, at the time of issuance.  Although the Applicant was convicted in civilian court in 2008, the offense happened 18 years prior and before she enlisted in the Marine Corps.  Shortly after becoming a citizen, she enlisted into the Marine Corps and completed her obligation, earning the rank of Corporal with average proficiency and conduct marks of 4.7/4.6, which is an above average Marine.  The Applicant attained her college degree (Magna Cum Laude in Computer Information Systems) and returned to Officer Candidate School and received her commission as a Second Lieutenant in the Marine Corps in December 1996.  Per her service records, the Applicant’s service has been exceptional, during which she attained numerous awards for her service.  At the BOI, all of her prior and present senior officers, to include an Army brigadier general, recommended that she be retained in the Marine Corps and if not, that she at least receive an Honorable discharge.  To quote the Federal judge at her trial, who read a reference from a fellow Marine: “While I cannot condone her actions from 17 years ago, I can step back and consider that these actions were taken by someone who was young, who was not an American citizen, who wanted to better herself, who wanted a better life, and someone who has dedicated her adult life to service to the American people.  While she was not born in this country, Captain S_ has done more service for this country than many Americans.”  Based upon the Applicant’s consistent superior service as a Marine officer in conjunction with the facts, circumstances, and events unique to this case, the NDRB voted unanimously (5-0) that the discharge characterization shall change to Honorable and voted unanimously (5-0) that the narrative reason for separation shall change to Secretarial Authority.  Relief granted.

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 change to .

Pertinent Regulation/Law

A.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 September 2001 until Present), Chapter 4, Paragraph 4102 PROCESSING FOR SEPARATION.

B.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) effective 15 December 2005 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 Mar 97.

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 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