ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20140401
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive:	USMCR (DEP)	19980820 - 19981018  	Active:		19981019 - 20031015  
					20031016 - 20070124  
					20070125 - 20111005  

Period of Service Under Review:
Date of Current Enlistment:  20111006	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20140304	Highest Rank:  
Length of Service:    Year(s)    Month(s)  27  Day(s)
Education Level:  	AFQT:  58
MOS:  6073 / 6071/ 0916 / 0918 / 0916
Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol   (3)   (2)  (5)     (2)  (2) COC COA (6) LOA (2)

Periods of CONF:  

NJP:  

- 20131113:	Article  (Absence without leave - fail to go to various medical appointments)
	Article 92 (Failure to obey order or regulation)
	Awarded:    Suspended:   

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  
          
- 20120911:	For referring to a commissioned officer as “Some f_____ douche bag Lieutenant.” When counseled following the remark, SSgt H_____ argued that “If someone was a douche bag I will call them one regardless of rank.”
- 20130118:	For arriving at 0720 for your 0700 appointment on 20130110 and failure to obey orders and lack of integrity and reliability that led to being pulled from TAP class. 
- 20131114:	For Article 86 (Absence without leave) and Article 92 (Failure to obey an order or regulation).

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM “981019 UNTIL 111005”
	  “MARCORSEPMAN 6210.6”
	  “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 P1900.16E), 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 92.

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

Applicant’s Issues

1.	The Applicant contends that his punishment was disproportionate to the alleged offenses.
2.    The Applicant contends that Administrative actions were retaliatory for making protected communications. 
3.    The Applicant contends that the basis for administrative separation was not meet.  
4.    The Applicant contends that he was assigned to a Medical Evaluation Board prior to his administrative actions began.  

Decision

Date:  20141002		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 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  6105 counseling warnings,   for  of the Uniform Code of Military Justice (UCMJ):  Article 86 (Absence without leave, 1specification), and Article 92 (Failure to obey an order or regulation, 1 specification).  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  By a majority vote, the administrative board found that a preponderance of the evidence presented proved all acts or omissions alleged in the notification, and recommended separation with a characterization of service of Under Other Than Honorable without any suspension.     

:  (Decisional) ()  .  The Applicant contends that his punishment was disproportionate to the alleged offenses.  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 Navy.  On 20130726, charges for unauthorized absence, disobeying a lawful order, malingering, and adultery were referred to a special court-martial.  On 20131028, the Applicant signed a pretrial agreement to have his misconduct adjudicated at NJP.  On 20131113, the Applicant was found guilty of Article 86 and Article 92 at NJP.  

The Applicant was subsequently notified of his Commanders Officer’s intent to separate him due to commission of a serious offense.  The Applicant was given an opportunity to present mitigation to an administrative board on 20140115.  The administrative board found that a preponderance of the evidence presented proved all acts or omissions alleged in the notification, and recommended separation with a characterization of service of Under Other Than Honorable without any suspension.  The NDRB found that 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 an Under Other Than Honorable Conditions discharge was warranted.  In accordance with paragraph 6311.8 of MCO P1900.16F, Marine Corps Separation and Retirement Manual,  when a Marine serving in pay grade E-4 or above is administratively separated with an other than honorable characterization of service, he shall be administratively reduced to pay grade E-3 upon separation.  Therefore, the NDRB found that the characterization of service and narrative reason for discharge to be proportionate to the offenses committed.  Relief denied.  

:  (Decisional) ()  .  The Applicant contends that Administrative actions were retaliatory for making protected communications.  The government assumes a presumption of regularity in the conduct of its affairs.  The Applicant’s record of service documents the fact that he was given three 6015 retention counseling warnings, found guilty of misconduct by a preponderance of the evidence at both NJP and his administrative board, and he was recommended for separation by an administrative board.  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 the commands actions were retaliatory.  Relief denied.  

:  (Decisional) ()  .   The Applicant contends that the basis for administrative separation was not meet.  The Board 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 Applicant was discharge due to a commission of serious offense as a result of his violation of UCMJ Article 92 (Failure to obey an order or regulation.)  The Applicant was given the opportunity to present his case at both NJP and an administrative board to no avail.  Furthermore, the Applicant presented the same argument via his counsel in a letter of deficiency with no relief granted.  The Applicant has not produced any new evidence to the NDRB that would warrant relief.  The NDRB determined that an upgrade would be inappropriate.  Relief denied   

 :  (Decisional) ()  .    The Applicant contends that he was assigned to a Medical Evaluation Board prior to his administrative actions began. The Applicant’s record of service does document two in-service back injuries, one in 2007 and another in 2012, that required treatment from medical professionals.  The record also shows that the Applicant was under medical care for his back injuries during the same timeframe of his misconduct leading to separation.  However, per regulations, the initiation and submission of medical boards are at the discretion of the individual physician.  There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority.  Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.  Therefore, the NDRB found the Applicant’s issue to be without merit.  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