ex-CWO2, USMCR

Current Discharge and Applicant’s Request

Application Received:  20100707
Characterization of Service Received:  
Narrative Reason for Discharge:  UNACCEPTABLE CONDUCT
Authority for Discharge:  SECNAVINST 1920.6C

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

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	19910624 - 19910909  	Active:	    19910910 - 19950909  
				USMCR 19950910 - 19960401  HON
				USMCR 19960402 - 20041130  HON
Period of Service Under Review:
Date of Appointment:  20041201	Age at Enlistment:  
Period of Enlistment:  Indefinite
Date of Discharge:  20100108	Highest Rank:  CWO2
Length of Service:    Year(s)    Month(s)  08  Day(s)
Education Level:  	AFQT:  63
MOS:  0621/ 0131/ 2531 / 0121 / 0171 / 0170
Officer’s Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  (6) Pistol  (5)  (2)  (3)  (1)  (2) AFRM (1)  (1)  (1)  (2) SMCRM (1)  (1)  (1) LoA (12) CoC (3) MM (5)
Periods of UA/CONF:  

NJP:  	
- 20090723:  Article 80 (Attempt to steal currency, $9,559.01, from U.S. Government via BAH fraud), o/o 20080731
		    Article 92 (Failure to obey an order or regulation), 2 specifications
			Specification 1: Violated order from CO to immediately liquidate BAH overpayment, o/o 20080821
			Specification 2: Dereliction of duty, willfully failed to review unit diary entry, o/o 20080731
		    Article 107 (False official statement), 2 specifications
			Specification 1: With intent to deceive, stating he did not use another’s ELSIG account, 20080821
			Specification 2: With intent to deceive, stating he was not aware of fraudulent BAH diary entry
		    Article 123 (Forgery with intent to defraud, CO electronic signature on NAVMC 11116), o/o 20080821
		    Awarded: Punitive Letter of Reprimand FOP   Suspended:  FOP (suspend 6 months) 

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214:
	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NAVY AND MARINE CORPS COMMENDATION MEDAL (2), NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (3), MILITARY OUTSTANDING VOLUNTEER SERVICE MEDAL, MARINE CORPS GOOD CONDUCT MEDAL (2), ARMED FORCES RESERVE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL (2), SELECTED MARINE CORPS RESERVE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY MERITORIOUS UNIT COMMENDATION, LETTER OF APPRECIATION (12), CERTIFICATE OF COMMENDATION (Individual Award) (3), MERITORIOUS MAST (5), RIFLE EXPERT BADGE (6), PISTOL EXPERT BADGE (5)”

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.  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 March 1997.

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.

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

Applicant’s Issues

1.	Applicant contends his discharge was too harsh.
2.	Applicant contends that he should have been allowed to retire or receive separation pay compensation.

Decision

Date:  20111109		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  UNACCEPTABLE CONDUCT.

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 completed a thorough review of 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 did reflect one  for  of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempt to steal currency valued at $9,559.01 from U.S. Government via BAH fraud, fraudulently changed and certified BAH zip code location on unit diary, o/o 31 Jul 2008), Article 92 (Failure to obey an order or regulation, 2 specifications: violated order from CO to immediately liquidate BAH overpayment and instead initiated a fraudulent repayment plan for 36 months, o/o 21 Aug 2008; and dereliction of duty by willfully failing to review unit diary entry before certifying the same, o/o 31 Jul 2008), Article 107 (False official statements, 2 specifications: With intent to deceive, stated to the command investigating officer that he did not use another Marine’s ELSIG account, though he in fact had reinstated the ELSIG account and used the same to change his BAH duty location zip code from San Diego to San Bruno/San Francisco, o/o 21 Aug 2008; and with intent to deceive, stated to the command investigating officer that he was not aware of the fraudulent BAH unit diary entry for himself when he certified the unit diary, o/o 29 Aug 2008), and Article 123 (Forgery, with the intent to defraud, using the commanding officer’s electronic signature on NAVMC 11116 to initiate a 36 month repayment plan authorization for the BAH overpayment, o/o 21 Aug 2008).  Based on the offenses committed by the Applicant, as evidenced by the results of the command investigation, his command referred his charges for an Article 32 Hearing pending possible General Court-Martial proceedings.  On 22 May 2009, the Convening Authority accepted and approved the Applicant’s request for pretrial agreement in which he agreed to accept NJP and tender his resignation for cause in lieu of trial by court-martial or further administrative processing.  On 17 Jul 2009, the Applicant submitted a request to the Secretary of the Navy, via Commandant of the Marine Corps (CMC), for resignation of his commission warrant in the Marine Corps in lieu of processing for administrative separation for cause.  On 23 Jul 2009, the Applicant was found guilty at 4th Marine Division, Commanding General NJP for violating UCMJ Articles 80, 92, 107, and 123.  The Applicant received a Punitive Letter of Reprimand the same day from the Commanding General, 4th Marine Division.  On 28 Sep 2009, the Commanding General, 4th Marine Division forwarded the results of NJP to the CMC, via Commander, Marine Forces Reserve, recommending that the Applicant be separated with an Under Other Than Honorable Conditions discharge.  On 25 Nov 2009, CMC recommended to the Assistant Secretary of the Navy (Manpower & Reserve Affairs) that the Applicant’s resignation for cause be accepted and that he should receive an Under Other Than Honorable Conditions discharge.  The Commandant further stated the Applicant’s “deceitful conduct was a clear deviation from that expected of a Marine Officer.”  The Applicant was discharged from the Marine Corps on 8 Jan 2010.

:  (Decisional) ()  .  The Applicant contends his discharge was too harsh.  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 good order and discipline; violations of UCMJ Articles 92, 107, and 123 meet this standard and are considered significantly egregious when committed by a Marine Corps officer.  The Applicant was fully aware of the special trust and confidence bestowed upon him by virtue of his rank and responsibility as a Marine Officer and his duty as a Personnel Officer.  The record clearly reflects his willful and deliberate misconduct and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be 

held accountable for his actions.  Violations of UCMJ Articles 92, 107, and 123 are punishable by six months to five years of confinement and a Bad Conduct Discharge, Dishonorable Discharge, or a Dismissal (based on the accused’s rank) if adjudicated at trial by court-martial.  However, since the Court-Martial Convening Authority accepted the Applicant’s request for a pre-trial agreement, he only received Commanding General’s NJP instead of a General Court-Martial proceeding.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful and deliberate failure to maintain the requirements of conduct expected of all Marines, especially considering his grade, billet responsibility, and total length of service, and falls far short of what is required for an Honorable upgrade to his characterization of service.  Relief denied.

:  (Nondecisional) The Applicant contends that he should have been allowed to retire or receive separation pay compensation.  The Applicant voluntarily tendered his resignation.  On 22 May 2009, the Convening Authority accepted and approved the Applicant’s request for pretrial agreement in which he agreed to accept NJP and tender his resignation for cause in lieu of trial by court-martial or further administrative processing.  On 17 Jul 2009, the Applicant submitted a request to the Secretary of the Navy, via Commandant of the Marine Corps, for resignation of his commission warrant in the Marine Corps in lieu of processing for administrative separation for cause.  In any event, the NDRB has no authority to make retirement or separation pay determinations as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  Only the Board for Correction of Naval Records can review and make determinations on these issues.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, request for resignation, and the administrative separation process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain UNACCEPTABLE CONDUCT.  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