ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130627
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MARCORSEPMAN 

Applicant’s Request:	Characterization change to: 
	Narrative Reason change to: SECRETARIAL AUTHORITY
	
Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	20001228 - 20010212 	Active:	 20010213 - 20060212 

Period of Service Under Review:
Date of Current Enlistment:  20080221	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20110812	Highest Rank:  
Length of Service:    Year(s)    Month(s)  22  Day(s)
Education Level:  	AFQT:  43
MOS:  6113/6162
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle     JMUA MUC CoA LoA (4)

Periods of CONF:  

NJP:  

- 20110113:	Article  (Absence without leave, on or about 20101118 to 20110105, failing to make it to his appointed place of duty)
	Article 134 (Indecent exposure, wrongfully taking nude photos of himself and posting them on the Internet)
	Awarded:     Suspended:   

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20110113:	For your NJP proceedings for violating Articles 86 and 134.

- 20110125:	For two separate occasions of Domestic Violence.  On 20100417 and 20101015 military police responded to your residence due to reports of domestic disturbance, assault, and abuse.

- 20110429:	For Physical Fitness Test failure.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “MISCONDUCT”
	
The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, 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.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), 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, Article 128.  

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

Applicant’s Issues

1.	The Applicant contends his discharge was inequitable and improper since MCO P1900.16 Figure L-8 requires a summary of the witnesses’ testimony and the Applicant’s testimony or unsworn statement.
2.	The Applicant contends MCO P1900.16 Figure L-8 lacked the senior administrative board member’s and recorder’s signatures and thus was not properly authenticated.
3.	The Applicant contends he went before his administrative board for Commission of a Serious Offense but was notified on 10 February 2011 of separation proceedings for a Pattern of Misconduct.
4.	The Applicant contends he was incorrectly charged with violating Article 134 vice being charged with Article 120.
5.	The Applicant contends his violation of Article 86 is not considered a Serious Offense.
6.	The Applicant contends an unsigned fitness report was improperly submitted at his administrative board.
7.	The Applicant contends unsigned Family Advocacy Program manager letters were improperly submitted at his administrative board.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  
8.	The Applicant contends the Separation Authority was not given the Applicant’s positive character letters to review.

Decision

Date:  20140109		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’s record of service included  6105 counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, on or about 20101118 to 20110105, failing to make it to his appointed place of duty) and Article 134 (Indecent exposure, wrongfully taking nude photos of himself and posting them on the Internet).  Based on the Applicant’s second substantiated domestic abuse offense, processing for administrative separation was mandatory.  When notified of administrative separation processing using the  procedure, the Applicant exercised  rights to consult with a qualified counsel and request an administrative board, but waived his right to submit a written statement to the Separation Authority.  The administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant had committed Misconduct (Commission of a Serious Offense) and recommended separation Under Other Than Honorable Conditions.  The Separation Authority concurred with the board’s recommendations and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Serious Offense).

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable and improper since MCO P1900.16 Figure L-8 requires a summary of the witnesses’ testimony and the Applicant’s testimony or unsworn statement.  The Applicant further contends the Separation Authority could not fully review mitigating circumstances without a summary of the testimony.  Also, the Applicant contends MCO P1900.16 Figure L-8 lacked the senior administrative board member’s and recorder’s signatures and thus was not properly authenticated.  Per the Marine Corps Separation and Retirement Manual (MCO P1900.16), “Appendix L is an outline and checklist for enlisted involuntary administrative separations with forms to be used at the discretion of the commander, with SJA recommendation, that may assist in the processing of these cases.”  The NDRB determined that the use of Figure L-8 is not a requirement and can be used at the discretion of the commander and further determined his discharge was proper and equitable.  Relief denied.

3:  (Decisional) ()  .  The Applicant contends he went before his administrative board for Commission of a Serious Offense but was notified on 10 February 2011 of separation proceedings for a Pattern of Misconduct.  The Applicant’s service record clearly shows the Applicant was notified a second time on 23 March 2011 for administrative separation proceedings for Commission of a Serious Offense.  The NDRB discerned no impropriety in the Applicant’s discharge based on this issue.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends he was incorrectly charged with violating Article 134 vice being charged with Article 120.  The Applicant further states that he pled guilty to a UCMJ article that did not exist, yet his defense counsel made no objection to this.  The record clearly shows the Applicant pled guilty to indecent exposure.  The NDRB determined that whether this offense was under Article 134 or Article 120 did not materially affect the propriety of the Applicant’s administrative discharge proceedings.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends his violation of Article 86 is not considered a Serious Offense.  The NDRB concurs with the Applicant’s contention that his violation of Article 86 was not a serious offense, however, there is nothing in the record to suggest that the administrative board or Separation Authority believed it was a serious offense and solely used that Article 86 violation to discharge the Applicant for Commission of a Serious Offense.  The Applicant’s second substantiated domestic abuse offense provided the serious offense for which he was discharged Under Other Than Honorable Conditions.  Relief denied.

Issues 6-7:  (Decisional) ()  .  The Applicant contends an unsigned fitness report was improperly submitted at his administrative board.  He further contends unsigned Family Advocacy Program manager letters were improperly submitted at his administrative board.  The Applicant states that his defense counsel failed to object to these documents.  The Applicant would have had the opportunity to question any document and provide a defense at his administrative board.  If the Applicant or his defense counsel believed that these documents were inaccurate or should have been barred, it was their obligation to contest these documents at the time they were introduced.  The NDRB determined the unsigned fitness report and Family Advocacy Program manager letters did not warrant an upgrade.  Relief denied.

8:  (Decisional) ()  .  The Applicant contends the Separation Authority was not given the Applicant’s positive character letters to review.  The Applicant states that when he requested a copy of his discharge package, copies of the positive character statements were not included.  The NDRB 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.  Other than the Applicant’s statement indicating that all the exhibits were not submitted to the Separation Authority, he failed to provide evidence to overcome the presumption of regularity.  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 .  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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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