ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100811
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  SECNAVINST 1920.6C

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

Summary of Service
Prior Service:
Inactive:	USMCR (DEP)	20051214 - 20060611  	Active:	R	  20060612 - 20060908  
	USMCR	20060909 - 20081003  COG		USMCR   20081004 - 20081211  HON

Period of Service Under Review:
Date of Appointment:  20081212	Age at Enlistment:  
Years Contracted:  Indefinite
Date of Discharge:  20091030	Highest Rank:  SECOND LIEUTENANT
Length of Service:    Year(s)    Month(s)  19  Day(s)
Education Level:  	AFQT:  73
MOS:  8001
Officer’s Fitness reports:  Available

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

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20090429:	Unknown [Extracted from CMC’s ltr dated 20090911]

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 Mar 97.

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 seeks a discharge upgrade to increase employment opportunities. 
2.	Applicant contends his discharge was improper/inequitable based on the circumstances surrounding his discharge.
3.	Applicant contends command impropriety precluded him from the ability to effectively communicate his personal circumstances to the upper level of his chain of command prior to being processed for administrative separation.

Decision

Date:  20120103		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 consideration.  The Board completed 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, commanding officer nonjudicial punishment (NJP), or trial by courts-martial.  The record did reveal the Applicant, while assigned to The Basic School (TBS), had established a record of below average to substandard performance that culminated in his being dropped from training and then processed for administrative separation due to misconduct or moral or professional dereliction.  Based on the substandard performance and an incident that displayed the Applicant’s questionable integrity, the Commanding Officer of TBS processed the Applicant for administrative separation.  When notified of administrative separation processing using the  procedure on 27 May 2009, the Applicant elected to exercise  rights to consult with a qualified counsel, submit a written statement, and request a resignation in lieu of administrative separation processing.  On 4 Jun 2009, the Applicant submitted two official letters to the chain of command: (1) Rebuttal of Recommendation for General (Under Honorable Conditions) Discharge, and (2) Request for Resignation for Cause.  In his rebuttal letter, the Applicant requested an Honorable characterization of service and requested consideration be given to his personal (family) circumstances along with his rebuttal to the determination that his actions or non-actions were either malicious, immoral, derelict, or of such discreditable nature as to warrant administrative separation.  In his request for resignation (for cause) in lieu of administrative separation processing, the Applicant requested consideration for an Honorable characterization of service acknowledging that his separation for discreditable management of personal affairs may warrant a General (Under Honorable Conditions) discharge.

On 18 Jun 2009, the CO, TBS, favorably endorsed the Applicant’s request for qualified resignation (for cause) in lieu of administrative separation processing, recommending that he receive a General (Under Honorable Conditions) discharge.  In his endorsement comments, the CO stated: “From 14 Jan to 29 Apr 2009, (the Applicant) demonstrated indifference and a trend of substandard performance.  During 10 of the 14 weeks of this period, (the Applicant) was ranked as one of the bottom three Lieutenants in his squad.  Further, he consistently failed to meaningfully participate in any of the 10 discussion groups, tactical decision games, and sand table exercises to which he was assigned.  (The Applicant’s) disinterest was further marked by formal and informal counseling sessions by his chain of command for failure to maintain personal grooming standards, unacceptable liberty attire, failure to properly secure his personal belongings, and tardiness or unauthorized absence.  As such, for the first command evaluation, (the Applicant) was ranked 13 of 16 by members in his squad and 45 of 49 in his platoon by his staff platoon commander.  On Fri, 24 Apr 2009, the Applicant’s wife (a Lance Corporal in the Marine Corps) drove from MCAS Cherry Point, NC to MCB Quantico, VA to visit (the Applicant) for the weekend.  On Sun, 26 Apr 2009, after dropping off (the Applicant) at TBS, she contacted him and informed him she was not going to return to MCAS CPNC; (the Applicant) was aware that his wife would enter a period of UA if she did not return to MCAS CPNC for duty on Mon, 27 Apr 2009.  In the afternoon of 27 Apr, (the Applicant’s) wife contacted her SNCOIC to inform him of the situation and was subsequently instructed to return to MCAS CPNC no later than Tue, 28 Apr 2009.  On Tue, 28 Apr, (the Applicant) failed to arrive on time 

for his platoon formation and morning report.  In the afternoon of 28 Apr, (the Applicant) informed his staff platoon commander (SPC) that he was late for on-deck time, because he was staying out in town with his wife and missed his alarm.  The SPC knowing of (the Applicant’s) spouse’s duty station inquired as to whether she was authorized to be in Quantico on Tue, 28 Apr.  (The Applicant) replied that she was; however, after being counseled by the Company Commander on Wed, 29 Apr, (the Applicant) informed his SPC that his wife did not have permission to be in Quantico on Tue, 28 Apr.  On 1 May 2009, (the Applicant) was transferred from Company B, a training company, to Company M, a holding company.”

(CO, TBS comments continued) “I am dissatisfied that (the Applicant) knowingly and willfully provided a false official statement to his SPC in an attempt to minimize, or entirely avoid, holding his wife accountable for her actions.  (The Applicant’s) untruthfulness and overall evasive approach to this situation seriously compromised his character.  Understanding that no one is, or can be, expected to meet unrealistically high moral standards, there is a limit of tolerance below which the personal standards of an officer cannot fall.  I find that (the Applicant) failed to demonstrate the maturity, judgment, and candor expected of a Marine Officer.  As such, his actions have given me pause with respect to his moral qualification for continued commissioned service.  No emergency, medical, or otherwise, required (the Applicant’s) wife to remain in the Quantico area without proper authority.  Rather, she consciously decided not to return to her appointed place of duty.  Once notified of his wife’s intent, I find that (the Applicant) was bound to preserve order and enforce regulations.  Although I can appreciate the difficulty in which he was placed, (the Applicant) failed to seek guidance or request assistance from his peers or chain of command and made a conscious decision to conceal the truth.  His moral flexibility and self-service indicate that he is incapable of estimating a situation and making an informed, appropriate, and responsible decision….While I ultimately recommend approval of (the Applicant’s) request for resignation in lieu of further processing for administrative separation, I find his rebuttal is rife with misrepresentation and hyperbole.”

On 29 Jun 2009, the CO, Training Command concurred with the CO, TBS endorsement.  On 7 Jul 2009, the Commanding General (CG), Training and Education Command (TECOM), endorsed the request, but recommended that the Applicant’s resignation be denied, and instead, he be administratively separated from the Marine Corps with a General (Under Honorable Conditions) characterization of service, which he believed was warranted by the Applicant’s conduct.  On 14 Jul 2009, the CG, Marine Corps Combat Development Command (MCCDC), concurred with the CG, TECOM and endorsed his recommendation for denial of the Applicant’s request for resignation (for cause) in lieu of administrative separation.  On 11 Sep 2009, the Commandant of the Marine Corps concurred with the CG, MCCDC and recommended to the Secretary of the Navy (Assistant Secretary of the Navy for Manpower and Reserve Affairs) that the Applicant’s resignation be denied and instead, he be administratively separated with a General (Under Honorable Conditions) characterization of service.  In his endorsement comments, the CMC stated, “(The Applicant) was provided opportunities to succeed, while being mentored and offered assistance from his command, but his conduct constitutes a significant departure from that expected of a Marine Corps Officer.  Accordingly, I recommend approval of (the Applicant’s) separation via notification procedures with a General (Under Honorable Conditions) characterization of service.”  On 16 Sep 2009, the Secretary of the Navy approved the Applicant’s administrative separation from the Marine Corps, which was completed on 30 Oct 2009.

:  (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable based on the circumstances surrounding his discharge.  The NDRB reviewed all of the available evidence within the Applicant’s service records.  A substantial amount of documentation within the record indicated the Applicant was not performing to the standards expected of a Marine Officer.  One excerpt from his extensive counseling record includes: 29 Apr 2009, squad ranking, squad leader comments: SNO was ranked in the bottom 5 of his platoon by 10 of his peers along with the following word picture comments: does not contribute anymore than necessary for the good of the platoon.  Dresses poorly outside of garrison, which suggests he is not dedicated to leading Marines 24/7; COMPLACENT, perception is that he would take the easy way out regardless of the situation, seems unmotivated all the time and unwilling to go to any extra lengths; SNO is competent and confident, but seems to be apathetic at most times.  SNO seems to generally lack enthusiasm.  SNO is reliable in tactical situations, but even then he seems to not care; SNO is extremely lackadaisical and does not appear to want to be a Marine Officer.  SNO does not show any type of motivation toward graduating or taking care of those around him.  SNO is wasting his talents, because in the field he stands out above others; SNO has the ability to lead when he wants to.  Shows complacency and does not seek the initiative to take on additional tasks; SNO is uncommitted and sarcastic.  

Per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), a Marine may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record.  After careful examination, analysis, and thorough deliberation, the Board determined that the Applicant’s administrative separation was proper and equitable per the applicable orders and directives in effect at the time of this separation.  Accordingly, the Board found that the Applicant’s issue did not provide a basis for which relief could be granted.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends command impropriety precluded him from the ability to effectively communicate his personal circumstances to the upper level of his chain of command prior to being processed for administrative separation.  The NDRB conducted a detailed examination of the records to determine whether the Applicant’s discharge met the pertinent standards of equity and propriety.  In reviewing the available documentation, the Board could find no evidence to support the Applicant’s contention that he was not allowed to communicate his personal circumstances with the upper levels of his chain of command.  Evidence within the record indicates the Applicant was counseled numerous times by his SPC, Jan - Apr 2009, and also by his Company Commander (B Company).  After considering all the available evidence, to include conversations with the Applicant’s Company Commander, the Commanding Officer of The Basic School opted to process the Applicant for administrative separation.  Additionally, after initial notification of administrative separation processing (27 May2009), the Applicant submitted a written letter explaining his circumstances up through his chain of command (Rebuttal of Recommendation for General Characterization, dated 4 Jun 2009) which included: Commanding Officer, TBS; Commander, Training Command; Commanding General, Training and Education Command; Commanding General, Marine Corps Combat Development Command, Commandant of the Marine Corps, and the Assistant Secretary of the Navy (M&RA).  Lastly, the Board could find no evidence that the Applicant utilized the Request Mast process to voice any concerns he may have had with his immediate command.  The NDRB, after detailed analysis of the records and thorough deliberation, determined this issue to be without merit and that it did not provide a basis for which relief could be granted.  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