ex- LCpl, USMC

Current Discharge and Applicant’s Request

Application Received: 20200512
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MARCORSEPMAN 6210.6 [COMMISSION OF A SERIOUS OFFENSE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: REQUESTED BUT NOT SPECIFIED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	19970904 - 20011203  
				20020130 - 20050214  

Period of Service Under Review:
Date of Enlistment:  20050215	Age at Enlistment:  34
Period of Enlistment:  5 Years   Extension
Date of Discharge:  20091124	Highest Rank/Rate:  SSgt
Length of Service:  04  Year(s)  09  Month(s)  10  Day(s)
Education Level:  12	AFQT:  81
Deployment/Operation: 

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  Pistol  GCM (2) NMCAM ICM SSDR (4) GWOTEM GWOTSM NDSM AREM MUC (3) NUC CoC (2) MM LoA

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  NONE   SCM:     SPCM:  

CIVIL ARREST:  2

- 20071226:	Charges:  Apprehended by Oceanside Police Department for Carrying a concealed weapon on person; Carrying a loaded firearm in a public place; Disorderly conduct - Prostitution

- 20081225:	Charges:  Apprehended by San Diego Police Department for Carrying a concealed firearm on person; Carrying a loaded firearm in a public place 

CC:  2

- 20080415:	Offense:  Found guilty in the Superior Court of California for Disorderly conduct - Prostitution
	Sentence:  Three years probation and fine

- 20090308:	Offense:  Found guilty in the Superior Court of California for Carrying a loaded firearm in a public place
	Sentence:  Three years probation and fine

Retention Warning Counseling:  2

- 20090309:	For misconduct as follows.  On 26 December 2007, you were arrested for possession of a loaded firearm, possession of a weapon while in a vehicle, and solicitation of a prostitute.  In March 2008, you were found guilty of solicitation of a prostitute while you were fined and placed on three years probation.  On 25 December 2008, you were again arrested and charged with possession of a concealed firearm, possession of a loaded firearm, public intoxication, and vehicular hit and run.  These charges constitute multiple violations of the UCMJ.

- 20090618:	For violation of Article 107.  Specifically, on 16 June 2009, you provided a statement to MSgt_B that your court hearing was scheduled on a particular date and time when it was actually discovered that it was at a different time on the same date.

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 19970904 UNTIL 20011203 AND 20020130 UNTIL 20050214”
  “GKQ1”
  “RE-4”

The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  Paragraph 6210.6, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 6 June 2007 until 25 November 2013.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant contends his discharge is improper and inequitable based on the inconsistencies between the evidence presented at his Administrative Separation (ADSEP) Board and the evidence that supported his guilty finding in a civilian court.

Discussion

Date:  20201110		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

The Applicant's record of service included:

 

Based on the  committed by the Applicant, the command administratively processed him for separation.  When notified of administrative separation processing, the Applicant exercised his right to request an Administrative Separation Board, but he waived his rights to consult with a qualified counsel and submit a written statement.   

Issue 1:  The Applicant contends his discharge is improper and inequitable based on the inconsistencies between the evidence presented at his Administrative Separation (ADSEP) Board and the evidence that supported his guilty finding in a civilian court.

In support of this issue, the Applicant provided a personal statement, criminal records, legal documents, and excerpts of in-service records.  In the Applicant’s personal statement, he further discussed his primary issue while indicating that his discharge was too harsh and he was a good Marine.

In review of the evidence of record, the NDRB found the Applicant served for a period of 12 years.  The Applicant’s total service includes a previous period of Honorable service from 1997 to 2005; however, the period of service that is subject to discharge review follows this honorable period and is four years and nine months.  During this period of service, the Applicant was twice arrested by civil authorities and convicted in court of law for offenses relating to these arrests.  In December 2007, the Applicant was apprehended by Oceanside Police Department for Carrying a concealed weapon on person; Carrying a loaded firearm in a public place; Disorderly conduct – Prostitution.  In April 2008, the Applicant was found guilty of Disorderly conduct – Prostitution.  In December 2008, the Applicant was apprehended by San Diego Police Department for Carrying a concealed firearm on person and Carrying a loaded firearm in a public place.  In March 2009, the Applicant was found guilty of Carrying a loaded firearm in a public place.  Following this second civil conviction, the Applicant was notified of Administrative Separation (ADSEP) processing under the basis of Misconduct – Commission of a Serious Offense and he was advised that the least favorable characterization that he may receive would be Under Other than Honorable Conditions (UOTHC).  The evidence that supported the basis for separation was an Article 134 violation associated with his second civil arrest and conviction; specifically, the misconduct was cited as reckless endangerment and carrying a concealed weapon.  Following receipt of this notification, the Applicant exercised his right to request an ADSEP Board to which his request was granted and he was assigned legal counsel.  This ADSEP Board found that the preponderance of evidence supported the basis for separation and recommended separation with a UOTHC characterization of service.  Following the ADSEP Board, the Applicant’s counsel submitted a Letter of Deficiency for consideration and this letter indicated his characterization was too harsh for a concealed weapon charge; the associated police report failed to prove the weapon was truly concealed and that charge was dropped; and he was only convicted of carrying a firearm in a public place.  

A service member may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial.  There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence.  In this case, an unbiased ADSEP Board reviewed all available evidence and concluded the basis for separation was satisfied.  Furthermore, the Applicant’s assigned counsel’s assertions were fully considered by the Separation Authority during the ADSEP process.  Upon full review of this case which included the documentation provided in support of this petition, the NDRB found that the Applicant engaged reckless behavior and concurred with the ADSEP Board and Separation Authority in that the basis for separation was satisfied and separation from service was warranted.  Furthermore, the NDRB found the awarded characterization of service was equitable and consistent with discharges given in similar circumstances.  Relief denied.
 
Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found .  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of GKQ1, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: The NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.