ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20090602
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)	20060310 - 20060619  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060620	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20080507	Highest Rank:  
Length of Service:    Year(s)    Month(s)  18  Day(s)
Education Level:  	AFQT:  35
MOS:  0121
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   

Periods of UA/CONF:  UA:  20071113-20071114, 2 days  IHCA  /  CONF:  

NJP:  
- 20061023:	Article  (Failure to obey order or regulation - left post and found sleeping in rank)
	Awarded:    Suspended:  

- 20070612:	Article  (Failure to obey order or regulation - fiancé in room unsupervised)
	Awarded:    Suspended:  

- 20071121:	Article  (Unauthorized absence - 5 specifications of failure to be at appointed place of duty on time)
	Article  (False official statement)
	Article 134 (Disorderly conduct - arrested by civilian authorities for possessing a concealed weapons)
	Awarded:    Suspended:  

SCM:            SPCM:            CC:  

Retention Warning Counseling:  
- 20061023:	For failure to obey an order or regulation.
- 20070612:	For failure to obey orders or regulations by having fiancé stay in his room unsupervised or during non visiting hours.
- 20071121:	For failure to report to your appointed place of duty.  Specifically, on 20070831, you failed to report to section physical training and failed to contact your chain of command on your whereabouts.  You reported to your work section at 0710, an hour and 10 minutes late.  You have previously been given verbal, and informal counseling’s for past tardiness, but still continues to be late.  Your continued tardiness shows a lack of maturity and decreases your level of performance.  Thus, you are falling into a repeated pattern of misconduct, which will not be tolerated.
- 20071213:	For receiving and being found guilty at three consecutive nonjudicial punishments:  Article 92 on 20061023 and 20070612, Articles 86 (5 specifications), 107 and 134 on 20071121, within the same enlistment.
- 20080115:	For unauthorized absence and failure to obey lawful order or regulation.  You failed to muster at the appointed time for restriction and were driving your privately owned vehicle which was against your restriction order.
- 20080131:	For unauthorized absence on 20080128.  SNM was instructed to be at Physical Training at 0600 and did not show up.  SNM was also a hour late for work and did not come in until he received a phone call asking where he was.

Administrative Corrections to the Applicant’s DD 214

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

	  “01  10  16”
	  “UNDER OTHER THAN HONORABLE CONDITIONS”

The NDRB will recommend to the Commandant of the Marine Corps 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:		Substance Abuse:		Criminal Records:	
	Family/Personal Status: 		Community Service:		References:	
	Additional Statements:
		From Applicant:		From Representation:		From Congress member:	
	Other Documentation:	

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.

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

Applicant’s Issues

1.  The Applicant seeks an upgrade to enhance employment opportunities. 	
2.  The Applicant claims his misconduct was due to his sleep disorder.  	

Decision

Date:  20100325                    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 which 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 and   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence: 5 specifications of failure to be at his appointed place of duty on time), Article 92 (Failure to obey an order or regulation - 2 specifications: left post and found asleep in rack and on a separate occasion he had his fiancé in room unsupervised), Article 107 (False official statement) and Article 134 (Disorderly conduct - arrested by civilian authorities for possessing a concealed weapon).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel and to submit a written statement for consideration by the separating authority, but did exercise his rights to appear before an administrative board.  The results of the administrative separation board (ASB) was unanimous (3-0) that the preponderance of the evidence proved all acts or omissions alleged in the notification, that the Applicant should be separated from the Marine Corps and recommended that his characterization of service should be “Under Other than Honorable Conditions”.  The command and separating authority approved all recommendations and discharged the Applicant accordingly.  

:  (Nondecisional) The Applicant seeks an upgrade to enhance employment 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.

:  (Decisional) ()  . The Applicant contends his misconduct was due to his sleep disorder.  The NDRB recognizes that the Applicant was being treated for persistent insomnia and even if the NDRB disregarded the unauthorized absence charges, the Applicant still violated four other UCMJ charges that led to his ultimate discharge from the Marine Corps.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant was counseled numerous times, wrote essay’s specifically targeting aspects of his career that he needed to improve and was taken to NJP three times.  The NDRB opined that the command spent an enormous amount of time and energy trying to get the Applicant to correct his behavior, but he chose not to take personal responsibility or accountability for his actions.  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, specifically the paragraphs titled Additional Reviews, Employment/Educational Opportunities and Post-Service Conduct.

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), 2 Navy Annex, Washington, DC 20370-5100 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