ex-WO, USMC

Current Discharge and Applicant’s Request

Application Received:  20120203
Characterization of Service Received:  
Narrative Reason for Discharge:  UNACCEPTABLE CONDUCT
Authority for Discharge:   MARCORSEPMAN par 4102

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

Summary of Service
Prior Service:
Inactive: USMCR (DEP)	19970114 - 19970120 	Active:	19970121 - 20001002 
		20001003 - 20040606 
		20040607 - 20080131 
Period of Service Under Review:
Date of Appointment:  20080201	Age:  
Years Contracted:  Indefinite
Date of Discharge:  20100304	Highest Rank:  WO
Length of Service:  02 Year(s)     Month(s)   04 Day(s)
Education Level:  	AFQT:  NFIR
MOS: 3402 	Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Rifle  Pistol   

Periods of UA/CONF:  

NJP:    SCM:    SPCM:    CC:    Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “SEA SERVICE DEPLOYMENT RIBBON (4), RIFLE EXPERT BADGE (6), PISTOL EXPERT BADGE (2), JOINT SERVICE COMMENDATION MEDAL, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, COMBAT ACTION RIBBON (3), JOINT MERITORIOUS UNIT AWARD (2), NAVY UNIT COMMENDATION RIBBON, MERITORIOUS UNIT COMMENDATION RIBBON, MARINE CORPS GOOD CONDUCT MEDAL (3), NATIONAL DEFENSE SERVICE MEDAL, IRAQ CAMPAIGN MEDAL (2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, KOREAN DEFENSE SERVICE MEDAL, HUMANITARTIAN SERVICE MEDAL.”
	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 970121 UNTIL 080131”
	
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:	

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

Applicant’s Issue

1.	The Applicant contends the charges referred to General Court-Martial were subsequently withdrawn, and it is an injustice that he was not afforded the same rules of evidence he would have had at a court-martial.
2.	The Applicant contends there was undue command influence in the Board of Inquiry (BOI) members.
3.	The Applicant contends that other service members were allowed to remain on active duty after being found guilty at court-martial.

Decision

Date:  20121212		Location: Washington D.C.	 Representation: Collin County Veterans

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 Applicant’s record of service did not contain any negative NAVPERS 1070/613 (Page 13) retention counseling warnings, commanding officers’ nonjudicial punishments, or trial by courts-martial.  However, his service record includes the findings of his BOI and subsequent endorsements.  Based on the Applicant’s failure to demonstrate acceptable qualities of leadership required of an officer in his grade and his commission of a military or civilian offense,  command recommended him for administrative separation.  By a vote of 3-0, the BOI recommended the Applicant be separated with a characterization of General (Under Honorable Conditions) due to his demonstration of Substandard Performance of Duty by failure to demonstrate acceptable qualities of leadership required of an officer of his grade and by the commission of a military or civilian offense that could be punished by confinement of six months or more and any other misconduct that would require specific intent for conviction.  The Applicant elected to voluntarily waive his right to submit any post-proceeding matters concerning the BOI.

:  (Decisional) ()  .  The Applicant contends the charges referred to General Court-Martial were subsequently withdrawn, and it is an injustice that he was not afforded the same rules of evidence he would have had at a court-martial.  Per SECNAVINST 1920.6C, the respondents and counsel may question any witness who appears before the BOI.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was not afforded an opportunity to fairly present his case to the BOI.  The evidence provided by the Applicant does not overcome the presumption of regularity in the conduct of government affairs.  The NDRB determined the BOI and subsequent discharge were both proper and equitable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends there was undue command influence in the BOI members.  In reviewing discharges, the NDRB 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 NDRB noted the record of evidence clearly shows the Applicant elected to waive his right to submit any post-proceeding matters concerning the BOI.  If the Applicant felt there was undue command influence, it was his obligation to bring up that allegation at the time of administrative processing vice waiving his rights to make a statement.  The evidence provided by the Applicant does not overcome the presumption of regularity in the conduct of government affairs, and the NDRB found no evidence of undue command influence.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends that other service members were allowed to remain on active duty after being found guilty at court-martial.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way 

inconsistent with the standards of discipline in the United States Marine Corps.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.  Relief denied.

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 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.

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.

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