ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100507
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:	USAR (DEP)	19890804 - 19891002  	Active:	USA	19891003 - 19921002  
			Active:	USNR	19950325 - 19950810  
							Active:	USMC	19960124 - 19991028  
							Active:	USMC	19991029 - 20030417  
							Active:	USMC	20030418 - 20060710  
Period of Service Under Review:
Date of Current Enlistment:  20060711	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090520	Highest Rank:  
Length of Service:    Year(s)    Month(s)  10  Day(s)
Education Level:  	AFQT:  33
MOS:  6672/0911
Proficiency/Conduct Marks (# of occasions):  NA	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol    (3)    (2)   KCM MCDIR  (2)   

Periods of UA/CONF:  CONF   20071018 - 20071229 (30 days)

NJP:  	SCM:  		SPCM:  		CC:  

GCM: 
- 20071018:	Article 108 (Wrongfully sold military property)
	Article  (Wrongfully steal military property)
	Awarded: (to E-2)  (90 days 20071018 - 20071229, 30 days) Fined ($24,215.60)  
	Suspended:  ($8,889.60)

Retention Warning Counseling:  
			- 20020506:   For inappropriate conduct.  On 28 Apr 2002 at approximately 0100, you were apprehended by local authorities and arrested for domestic violence.   Your conduct while on liberty is not indicative of those qualities associated with being a Marine staff non-commissioned officer and is therefore unacceptable.

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.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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, Articles 108 and 121.

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

Applicant’s Issues

1.	Applicant contends his discharge was improper/inequitable, because he was not guilty of the offenses for which he was separated.
2.	Applicant contends he was not afforded the right to an administrative separation board prior to his discharge.

Decision

Date:  20110804		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 two decisional issues for the Board’s consoderation.  The Board conducted 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 did not include any 6105 retention counseling warnings or commanding officer’s nonjudicial punishment, but did reflect one General Court-Martial for violations of the Uniform Code of Military Justice (UCMJ): Article 108 (Sale or wrongful disposition of military property, o/o 6 Apr 2005 and 3 Jan 2006, sell to the public 343 distress light markers valued at $24,215.60) and Article 121 (Larceny of Government property, o/o 8 Jul 2004 and 29 Nov 2006, steal 343 distress light markers valued at $24,215.80).  Based on the offenses committed by the Applicant,  command referred him to trial by General Court-Martial where he was found guilty of the aforementioned charges, but not awarded a punitive discharge.  His command subsequently processed  for administrative separation.  When notified of administrative separation processing using the  procedure on 30 Apr 2008, the Applicant elected to consult with a qualified counsel, but waived his right to request an administrative separation board.  The Applicant was separated from the Marine Corps on 20 May 2009 with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable, because he was not guilty of the offenses for which he was separated.  In response to the Applicant’s claim that he was not guilty of the offenses for which he was separated, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  Since the General Court-Martial proceeding found the Applicant guilty of violating UCMJ Articles 108 and 121 but did not award a punitive discharge, the NDRB considered all the evidence and circumstances within the record to determine if  discharge met the pertinent standards of equity and propriety.  After careful examination and thorough deliberation, the Board found that the Applicant’s discharge was proper and equitable and in accordance with the applicable orders and directives in effect at the time of his discharge.  Accordingly, the Board determined this issue did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends he was not afforded the right to an administrative separation board prior to his discharge.  The NDRB conducted a thorough examination of the Applicant’s service records and found a Notification of Administrative Separation Proceedings letter, dated 30 Apr 2008, from the Marine Aviation Logistics Squadron Commanding Officer to the Applicant that explained the basis for administrative separation proceedings and the rights afforded the Applicant to include the right to an administrative separation board.  On 1 May 2008, the Applicant responded, in writing (multiple initials and one signature on Acknowledgment of Rights letter), that he understood the basis for the separation proceedings and each of the rights afforded him.  On the Rights Acknowledgment letter, the Applicant initialed that he had already consulted with counsel and elected to waive his right to request an administrative separation board.  In his Application for Review of Discharge (DD 293), the Applicant claimed that in addition to not being afforded his right to an administrative board, his separation documents were initialed by someone other than himself.  The NDRB is not an investigative agency and claims of forgery or false representation should be made to the appropriate law enforcement agency or the Naval Inspector General’s Office.  However, in reviewing other documentation within the service record, the Board found that the initials and signature on the Acknowledgment of Rights letter seemed to match other 

documentation signed or initialed in the Applicant’s record, with no variance noted.  After considering all the facts and circumstances surrounding this case, the NDRB determined that the Applicant’s discharge process was proper and the character of service awarded was equitable.  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 conduct expected of all Marines, especially one of his grade and length of service, and falls short of what is required for an upgrade in the characterization of service.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation 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 for additional information.

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