ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120105
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)	20051005 - 20051024  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20051025	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100604	Highest Rank:  
Length of Service:    Years    Months  10  Days
Education Level:  	AFQT:  52
MOS:  0231
Proficiency/Conduct Marks (# of occasions):   (9)/  (9)	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    (with 2 Campaign Stars)  (2) ACM (with 1 Campaign Star)    (2)  CoA

Periods of CONF:  

NJP:  

- 20061102:	Article  (Absence without leave - UA 20061004-20061005, 2 days)
	Article  (Failure to obey order or regulation)
	Awarded:     Suspended:   FOR 15 DAYS 

- 20090521:	Article  (Absence without leave, 2 specifications)
	Specification 1: Failure to show up to appointed place of duty 20090401-20090402
	Specification 2: Failure to show up to appointed place of duty 0740-1250, 20090425
	Article  (Missing movement)
	Article  (Failure to obey order or regulation, 4 specifications)
	Specification 1: Derelict in the performance of duties in that he negligently showed his Marines how to access the non-secure Internet Protocol Router while on a Secure Internet Protocol Router Computer
	Specification 2: Wrongfully using a federal government communication system and equipment for unauthorized purposes
	Specification 3: Disobeying an order from his section leader to stage his gear at 6th Marines parking lot at 0400, 20090401
	Specification 4: Quitting his post without properly being relieved
	Awarded:     Suspended:  

- 20100430:	Article  (Absence without leave - UA 20090812-20100408, 238 days)
	Awarded:     Suspended:  

SCM:     		SPCM:     		CC:  

Retention Warning Counseling:  

- 20061120:	For unauthorized absence, disobeying a lawful Marine Corps Order, and setting a poor example for others to follow.

- 20090521:	For unauthorized absence, missing movement, and disobeying a direct order.

- 20100419:	For absence without leave.  Absent himself from his unit on 20090812 until he was apprehended on 20100408 by the Harris County Sheriffs Officer, Houston, TX and returned to Alpha Company, Headquarters and Support Battalion, Camp Pendleton, CA on 20100408. 

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.  The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 2001 until Present, 
Paragraph 6210, MISCONDUCT.

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, Articles 86 (UA greater than 30 days), 87 and 92.

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

Applicant’s Issues

1.	The Applicant seeks a change in his RE-code to reenlist into the Armed Forces.
2.	The Applicant contends his command did not take into account his medical situation.
3.	The Applicant believes his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20121220		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 Applicant did identify one decisional issue to the Board.  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 and   for  of the Uniform Code of Military Justice (UCMJ): Article  (Absence without leave, 4 specifications: [1] UA 20061004-20061005, 2 days; [2] Failure to show up to appointed place of duty, 20090401-20090402; [3] Failure to show up to appointed place of duty 0740-1250, 20090425; [4] UA 20090812-20100408, 238 days [apprehended]), Article  (Missing movement), and Article  (Failure to obey order or regulation, 5 specifications: [1] Not found in record; [2] Derelict in the performance of duties in that he negligently showed his Marines how to access the non-secure Internet Protocol Router while on a Secure Internet Protocol Router Computer; [3] Wrongfully using a federal government communication system and equipment for unauthorized purposes; [4] Disobeying an order from his section leader to stage his gear at 6th Marines parking lot at 0400, 20090401; [5] Quitting his post without properly being relieved).  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, submit a written statement, and request an administrative board.

:  (Nondecisional) The Applicant seeks a change in his RE-code to reenlist into the Armed Forces.  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 Board for Correction of Naval Records 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.

:  (Decisional) ()  .  The Applicant contends his command did not take into account his medical situation.  A thorough review of the Applicant’s records and documentation submitted to the NDRB by him shows the Applicant experienced injuries from a motor vehicle accident while on approved leave away from his duty station from 17 July 2009 until 27 July 2009.  His command further extended his leave to 12 August 2009 for convalescent recovery time.  The records also reflect the Applicant submitted three additional convalescent leave requests for the periods 26 July 2009 through 7 November 2009 for recommended surgery recovery time.  The Applicant did not have any more leave on the books after 12 August 2009, and he chose not to return to his duty station to continue with further medical treatment.  By regulation, a member is to return to his command as soon as he is physically able so that he can be evaluated by the command’s medical staff.  Even though he was being seen by an Air Force physician, who recommended additional convalescent leave, the Air Force physician did not have the authority to grant the leave nor order the Applicant to remain in Texas.  It was the Applicant’s duty to return to his unit for further medical evaluation and treatment.  From the records, it appears the Applicant refused to return to his command when they told him he had no more leave on the books and that his injuries did not preclude 

him from returning to his duty station.  The record shows the Applicant was UA for 238 days on his own accord and was only returned to military custody when he was apprehended by civilian officials, which suggests he had no intention of returning to the Marine Corps.  Being UA for longer than 30 days is a serious military offense that warrants a punitive discharge (i.e., Bad Conduct Discharge) as the result of a Special or General Court-Martial.  The Marine Corps, however, decided to pursue the more lenient administrative separation process.  When notified of separation for commission of a serious offense, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  After reading the Applicant’s DD Form 293 statement and reviewing the substantial documentation he submitted along with the Applicant’s service records, the NDRB discerned no impropriety or inequity in how he was treated, punished, and ultimately discharged.  Before the incidence of UA that led to his discharge, the Applicant had two other NJPs, two retention warnings, and overall Proficiency and Conduct marks that were below average (4.0/3.9) in his enlistment.  The Applicant did serve tours in Iraq and Afghanistan, however, his UA for 238 days (ended by apprehension) in conjunction with the other misconduct in his enlistment warranted separation Under Other Than Honorable Conditions for Misconduct (Serious Offense).  Relief denied.

Additionally, after reviewing the records, the NDRB determined the Applicant was properly discharged as a Private First Class.  After an NJP on 21 May 2009, his command reduced him in rank to Lance Corporal.  After another NJP on 30 April 2010, he was again reduced in rank to Private First Class. 

:  (Decisional) ()  .  The Applicant believes his post-service conduct and qualification as a Firefighter and an Emergency Medical Technician warrant consideration for an upgrade.  The Applicant submitted a statement, a Texas Department of State Health Services Emergency Medical Technician certificate of completion, Woodlands Fire Department certificate of completion, Texas Commission on Fire Protection firefighter basic course certificate of completion, and a college transcript.  The NDRB considers 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.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  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