, ex- MGySgt, 

Current Discharge and Applicant’s Request

Application Received: 20210401
Characterization of Service Received:   
Narrative Reason for Discharge:   TRANSFERRED TO THE FMCR
Authority for Discharge:   MARCORSPEMAN 1900.16f 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: SUFFICIENT SERVICE FOR RETIREMENT
Reentry Code change to: RE-1

Summary of Service

Prior Creditable Service:
Inactive:	 	        	Active:	19890117 - 20100706  

Period of Service Under Review:
Date of Enlistment:  20100707	Age at Enlistment:  41
Period of Enlistment:   Years   Extension
Date of Discharge:  20130831	Highest Rank/Rate:  MGySgt
Length of Service:    Year(s)    Month(s)  24  Day(s)
Education Level:  	AFQT:  
Deployment/Operation: 
                                       OPERTION IRAQI FREEDOM 19 MAR 2003-31 AUG 2010
                                       PERSIAN GULF (OPERATION DESERT SHIELD/STORM)

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle  Pistol  GCM NMCCM NMCAM MM CAR PUC NUC MUC NDSM SWASM ACM ICM KLM GWOTSM GWOTEM SSDR NDSM KDSM

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

NJP:      SCM:     SPCM:    Retention Warning Counseling:  NONE

CIVIL ARREST:  

- 20120119:	Charges:  Assault Inflicting Serious Injury

CC:  

- 20120524:	Offense:  Misdemeanor Assault Inflicting Serious Injury
	Sentence:  60 days confinement (Suspended to 28 days), 1 month probation and $2861.00 in fines and court fees. 

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 19890117 UNTIL 2010706.”
	
Block 18, Remarks, should contain the statement: “Member to be retired at the grade of E-8 and rank of Master Sergeant”
	
  “GENERAL (Under Honorable Conditions)” per DC, M&RA Final Characterization of Service and Grade Determination decision dated 20130710 and/or 20130717.
	
The NDRB will recommend to 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:	
 
Pertinent Regulation/Law

A. Paragraph 6210.7, UNACCEPTABLE CONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 January 2010 – Present).

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 that his Separation Code, Reentry Code and Narrative Reason for discharge are unjustified because after seven years his civilian conviction is now dismissed/expunged from his record. 

Discussion

Date:  20210401		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:

:  The Applicant contends that his Separation Code, Reentry Code and Narrative Reason for discharge are unjustified because after seven years his civilian conviction is now dismissed/expunged from his record. 

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.  When reviewing discharges, the Board considers the standards for determining characterization of service where an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions (UOTH) discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. 

In this case, the Applicant was arrested and convicted in state court for assaulting an adult female on or about 24 May 2012.  The warrant issued for the Applicant’s arrest was based on probable cause that the Applicant “punch[ed] victim in her mouth and on the right side of her face with a closed fist.  After victim fell to the ground, defendant [Applicant] dragged victim face down over the pavement for an undetermined distance thereby inflicting serious injury abrasions on victim’s face, arms, hand and back. Swollen tongue, chipped tooth and injured jaw.”  

Upon discovering the above assault occurred, the Applicant’s Command directed a Command Investigation which found there was sufficient evidence the Applicant violated Article 128 (Assault) and Article 134 (Failure to notify his Command of his arrest).  Accordingly, the Command instituted Administrative Separation proceedings.  In accordance with the MARCORSEPSMAN, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense.  Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence.  Here, the statements and documents provided by the Applicant do not refute the presumption of regularity in this case.  Of note, the Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the Commandant of the Marine Corps letter of notification.  Further, the Applicant was permitted to retire in lieu of facing an Administrative Separation Board and avoid a potential UOTH characterization of service. 

The Applicant now contends that because the State of North Carolina granted his petition for dismissal and expungement of his 2012 conviction for assault, his Narrative Reason, Separation Code, and Reentry Code (RE-Code) are now inaccurate.  Of note, the Applicant did not provide the grounds for the State’s dismissal/expungement of his 2012 assault conviction; more specifically, the Applicant did not provide sufficient evidence that his dismissal was granted based on trial (evidentiary) error, or merely the result of North Carolina’s evolving Second Chance Act/Expungement Law.  Generally, the Board understands that North Carolina’s Second Chance Law essentially hides (expunges) eligible charges/arrests/convictions but does not acquit the Defendant of the crime.  

Upon review, the Board found limited merit in the Applicant’s contentions.  First, there is preponderance of evidence that there was a victim, and that the Applicant was the perpetrator.  Nonetheless, the Board considered the implication of the court’s dismissal/expungement, but noted the Applicant’s Command properly used a preponderance of the evidence standard not the state (criminal) court’s “beyond a reasonable doubt” standard.  Further, there is sufficient evidence the Applicant violated Article 128 when he failed to notify his Command of his arrest.  Finally, standing alone, without the Article 128 (Assault) charge/conviction, the Board held the Applicant’s failure of duty (Article 134) with the aggravating factor that it was committed by a Senior Non-Commission Officer was in itself a significant negative aspect.                

In making its determination, the Board considered the Applicant’s overall rank and grade, years of service, and his performance and conduct this period of enlistment.  Specifically, the Board noted the narrative reason for the Applicant’s separation was the direct result of his unacceptable conduct (assault and/or failure of duty/notify).  Continuing, the Board found that because he had sufficient service for retirement he was retired under MARCOPSEPMAN Para. 2003, and deemed no propriety error with the assignment of his narrative reason and its corresponding/corroborating separation code of RNC1: “voluntary retirement authorized by, but not required by law, when a member performs acts of unacceptable conduct (i.e., moral and/or professional dereliction) not otherwise listed herein.”  In short, the Board found no other narrative reason for separation (and its corresponding code) more accurately describes the reason the Applicant was separated (Unacceptable Conduct (RNC1)).  The Board also held that his Re-Code, of RE-2A was proper, (and in fact not derogatory) as RE-2A merely indicates “transferred to FMCR [Feet Marine Corps Reserve] before reaching maximum service limitation for grade.”

Although the Applicant did not contend his characterization of service was improper, the Board reviewed the Applicant’s Official Military Performance Files (OMPF) and discovered Headquarters Marine Corps erroneously reflected on the Applicant’s DD 214 he received an “Honorable” characterization of service.  Upon review, the Board determined the Deputy Commandant of the Marine Corps (Manpower & Reserve Affairs) held that the Applicant was to receive a “retirement with a general (under honorable conditions) characterization of service in the grade of Master Sergeant” on or about 17 July 2013.  The Board noted that there was corroborating evidence to support that the Applicant’s current DD214 erroneously reflected an honorable characterization rather than the directed General.  First, the Board found the Applicant’s conduct rose to a level as to be deemed significant negative aspects and/or constituting a significant departure from the conduct expected of members of the Naval Service.  Second, the Board noted the Applicant’s chain of Command’s comments/endorsements corroborate a General characterization.  Finally, the Board noted that the Deputy Commandant annotated in two specific locations his review of the Applicant’s case.  Consequently, the NDRB will recommend to Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

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 be corrected to GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  UNACCEPTABLE CONDUCT with a corresponding separation code of RNC1, and the reentry code shall  RE-2A.  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

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing, if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) 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.  However, if you have been discharged for more than 15 years; or already had a personal appearance hearing; or otherwise exhausted your opportunity to be heard by 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.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case; AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing, or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge) 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.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, 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 (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision, and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/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 [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, who determine eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, to find the nearest VA office to provide assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations.

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.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

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.