ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130814
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: MEDICAL
	
Summary of Service

Prior Service:
Inactive:	USN (ROTC)	19890128 - 19920514  	Active:	    19920515 - 19960915   HON
			Active:	    20010924 - 20020712   HON
			Active:	R  20020722 - 20030116   HON
			Active:	R  20030214 - 20050410   HON
			Active:	R  20050901 - 20060811   HON
Period of Service Under Review:
Date of Current Active Duty Period:  20070806	Age at Beginning of Current Active Duty Period:  
Date of Discharge:  20100809	Highest Rank:  
Length of Service:    Years    Months  04  Days
Education Level:  	AFQT:  NFIR
MOS:  0402
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol     (4)  (2) AFRM    (2)     JMUA 

Periods of UA/CONF:  

NJP:  

- 20090818:	Article  (Failure to obey order or regulation, dereliction in performance of duties)
	Article 108 (Military property - loss, damage, destruction, disposition)
	Article 133 (Conduct unbecoming an officer)
	Awarded: Punitive Letter of Reprimand

SCM:       		SPCM:       	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “”
	
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.  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.	The Applicant requests that the NDRB recommend to the Secretary of the Navy that the Applicant’s Article 15 hearing (Nonjudicial Punishment) and subsequent Board of Inquiry be set aside.  
2.	The Applicant requests that the NDRB recommend to the Secretary of the Navy that he be restored to active duty so he can complete the medical review board process and be separated with a General (Under Honorable Conditions) due to medical reasons to include full financial retirement benefits.
3-16.	Based on 14 specific errors or injustices (listed below), the Applicant contends his discharge is improper and inequitable and requests a change in his narrative reason for separation to affect his reinstatement in the United States Marine Corps.

Decision

Date:  20140402		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 did complete 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 included   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, dereliction in performance of duties), Article 108 (Military property - loss, damage, destruction, disposition), and Article 133 (Conduct unbecoming an officer).  Based on the offenses committed by the Applicant, Commanding General, U.S. Marine Corps Forces, Central Command directed the Applicant to show cause for retention before a Board of Inquiry (BOI).  Convened on 17 December 2009, the BOI found, by a preponderance of the evidence, that the Applicant committed acts of misconduct or moral or professional dereliction as evidenced by his NJP on 18 August 2009.   By majority vote, the BOI recommended the Applicant be separated from the Marine Corps and that his service be characterized as General (Under Honorable Conditions).  COMMARCENT and Deputy Commandant for Manpower & Reserve Affairs concurred with the findings and recommendations of the BOI and recommended to the Secretary of the Navy that the Applicant be separated from the Marine Corps with a General (Under Honorable Conditions) characterization of service.  The Assistant Secretary of the Navy (Manpower & Reserve Affairs) (ASN (M&RA)), on behalf of the Secretary of the Navy, approved the Applicant’s separation on 01 July 2010 with a General (Under Honorable Conditions) characterization of service for Unacceptable Conduct.

:  (Nondecisional)  The Applicant requests that the NDRB recommend to the Secretary of the Navy that the Applicant’s Article 15 hearing (NJP) and subsequent BOI be set aside.  The NDRB is charged with reviewing the propriety and equity of an Applicant’s discharge and is authorized to change the characterization of service and the reason for discharge if such change is warranted.  The NDRB is not authorized to overturn, or make recommendations to overturn, adjudication at NJP or the results of a BOI.  This issue falls under the purview of the Board for Correction of Naval Records (BCNR), not the NDRB.  An application to the BCNR can be made using DD Form 149, and their address is 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490.

:  (Nondecisional)  The Applicant requests that the NDRB recommend to the Secretary of the Navy that he be restored to active duty so he can complete the medical review board process and be separated with a General (Under Honorable Conditions) due to medical reasons to include full financial retirement benefits.  Department of Defense 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 Under Other Than Honorable Conditions 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.

Issues 3-16:  (Decisional) ()  .  The Applicant contends his discharge is improper and inequitable and requests a change in his narrative reason for separation to affect his reinstatement in the United States Marine Corps.  The Applicant presented 14 specific errors or injustices that, in the Applicant’s estimation, warrant a change in his narrative reason for separation.  The 14 specific errors or injustices alleged by the Applicant are as follows:

1.	Failure to adhere to whistleblower protection act in accordance with U.S. Code Title 10, Section 1034: protected communications and prohibition of retaliatory personnel actions
2.	Failure to adjudicate legal case in an ethical manner
3.	Failure to adhere to procedural due process: evidence not being provided: Multi National Force-West Inspector General’s report
4.	Failure to adhere to procedural due process: video being watched without the Applicant being present
5.	Failure of defense counsel to act in an ethical manner (professional misconduct)
6.	Suppression of evidence - missing Naval Criminal Investigative Service report
7.	Denial of request for continuance
8.	Denial of request for individual military counsel
9.	Improper composition of Board of Inquiry
10.	Failure to adhere to procedural due process: insufficient opportunity to challenge witness testimony
11.	Failure to adhere to procedural due process: the BOI impermissibly sought and received advice from the legal advisor during closed sessions of the BOI
12.	Failure to adhere to procedural due process: findings with regard to substandard performance of duty not documented by BOI president
13.	False statement made by adjudicating authority in endorsement letter
14.	Failure to investigate violations of the UCMJ with regard to fraudulent activity within U.S. Marine Corps Forces Central Command – Multi National Forces-West under the command of Major General J_ K_.

The Applicant did not request an upgrade in his discharge characterization.  Because the NDRB is not an investigative body, 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.  When charged with violations of the UCMJ, the Applicant did not request trial by court-martial but accepted NJP at which he pled guilty to violations of UCMJ Article 92, Article 108, and 133.  The Applicant did not appeal his NJP or punishment.  Based on the Applicant’s adjudicated misconduct, the Applicant was required to show cause before a BOI on 17 December 2008.  The BOI, by a preponderance of the evidence, found that the Applicant had committed acts of misconduct or moral or professional dereliction as evidenced by his NJP of 18 August 2009.  In response to the Applicant’s Response to Report of BOI, dated 28 March 2010, the Convening Authority (Commanding General, U.S. Marine Forces, Central Command) determined the Applicant’s allegations to be without merit and recommended to the Secretary of the Navy that the Applicant be separated from the naval service with a General (Under Honorable Conditions) characterization of service.  On 11 June 2010, the Deputy Commandant for Manpower & Reserve Affairs concurred with the findings and recommendations of the BOI.  The Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved the Applicant’s separation with a General (Under Honorable Conditions) for Unacceptable Conduct.  Based on the evidence of record, and the evidence provided by the Applicant, the NDRB determined the Applicant was afforded full due process and discerned no impropriety or inequity with the discharge process.  After a thorough review of the Applicant’s issues and substantive documentation, to include the voluminous data on the submitted CD, as detailed in the 14 specific errors or injustices, the NDRB determined the misconduct for which the Applicant was separated is indisputable and warranted separation from the Marine Corps and the awarded characterization of service and narrative reason for separation.  The Applicant’s claims of misconduct by senior officers in his chain of command are issues that do not fall under the purview of the NDRB and should be addressed by the appropriate Inspector General’s office.  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.

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