ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120516
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)	20050429 - 20051011  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20051012	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20100706	Highest Rank:  
Length of Service:    Year(s)    Month(s)  24  Day(s)
Education Level:  	AFQT:  41
MOS:  3531
Proficiency/Conduct Marks (# of occasions):  / 	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   (2)   

Periods of UA/CONF:  

NJP:  

- 20070329:	Article  (Drunken or reckless operation of vehicle, aircraft, or vessel)
	Awarded:    Suspended:  

- 20100127:	Article  (Drunken or reckless operation of vehicle, aircraft, or vessel) 
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

CIVIL ARREST:  

- 20100103:	Charges:  DUI

Retention Warning Counseling:  

- 20070317:	For violation of Article 111, Drunken or reckless operation of vehicle, aircraft, or vessel.  On or about 20070217 SNM was found in violation of driving under the influence of alcohol by the Military Police, with a breathalyzer of .06.

- 20070614:	For violation of Article 86, Unauthorized absence 1400, 20070614.  SNM was late 30 minutes for a convoy brief roll call.

- 20100120:	For recent DUI charge while under an impairing substance of 0.14 in Carteret County, North Carolina on or about 20100103 and driving at a speed of 62 MPH in a 35 mph in Carteret County, North Carolina.  

- 20100127:	For recent NJP held on 20100127 for violation of Article 111, Drunk and reckless driving.

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 P1900.16F), 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 to improve his employment and educational opportunities.  
2.	The Applicant seeks Department of Veterans Affairs (VA) medical benefits. 
3.	The Applicant contends he was separated based on one DUI.
4.	The Applicant contends his characterization is too harsh, and Marines with much worse misconduct were allowed to continue to serve.
5.	The Applicant contends his administrative separation board allowed him to finish his enlistment.

Decision

Date:  20130403		Location: Washington D.C.	 Representation: Carteret county 								             VETERANS SERVICES

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’s record of service included  6105 counseling warnings and
  for  of the Uniform Code of Military Justice (UCMJ): Article  (Drunken or reckless operation of a vehicle, aircraft, or vessel, 2 specifications).  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 submit a written statement, but exercised his right to request an administrative board.  The administrative board voted 3-0 that the preponderance of the evidence supported the Applicant had a pattern of misconduct and recommended separation with a characterization Under Other Than Honorable Conditions.  The administrative board further recommended that the Applicant’s separation should be suspended.  The Separation Authority concurred and approved the administrative board’s recommendations with the exception of suspending the Applicant’s separation.  As a result, the Applicant was discharged Under Other Than Honorable Conditions for a Pattern of Misconduct.

:  (Nondecisional)  The Applicant seeks to improve his employment and 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.

:  (Nondecisional)  The Applicant seeks VA medical 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.

:  (Decisional) ()  .  The Applicant contends he was separated based on one DUI.  The record clearly shows that while the Applicant’s second DUI may have led his command to initiate administrative separation processing, he was separated for a pattern of misconduct based upon misconduct throughout his enlistment.  The Applicant was found guilty at two NJPs for violation of Article  (Drunken or reckless operation of a vehicle, aircraft, or vessel) and received four 6105 retention counseling warnings.  Despite being given multiple opportunities to correct his behavior, the Applicant’s continued misconduct led his command to administratively separate him.  The Applicant exercised his right to an administrative board, and the members determined that the preponderance of the evidence supported that the Applicant had a pattern of misconduct.  The NDRB discerned no impropriety or inequity and the Applicant’s separation for a pattern of misconduct was appropriate.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his characterization is too harsh, and Marines with much worse misconduct were allowed to continue to serve.  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.  Pursuant to Marine Corps Separation and Retirement Manual paragraph 6210.3, characterization of service for separation under a pattern of misconduct normally shall be Under Other Than Honorable Conditions.  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 Marine Corps.  A preponderance of the evidence supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends his administrative separation board allowed him to finish his enlistment.  The administrative board’s recommendation for suspending a separation is just that, a recommendation.  The Separation Authority ultimately determines whether to accept the board’s recommendation or separate the Marine immediately.  There is no provisional guarantee that a Marine will receive a suspended separation based on the administrative board’s recommendation.  The NDRB determined the Applicant’s separation was proper, and the Under Other Than Honorable Conditions characterization was equitable.  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