Author: Vasquez, Catalina M CPL CORB, PEB
Company: NMCI

Docket No.MD14-01595

Docket  No. MD14-01595

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

APPLICANT'S ISSUES

I. The Applicant contends that he signed paperwork that stated he would receive a General, Under Honorable Conditions discharge if he successfully completed his restriction.

DECISION

Date:  20141204   DOCUMENTARY REVIEW 	Location: WASHINGTON D.C. 	Representation: NONE By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 completed a thorough review of the circumstances that led to the Applicant's discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant's record of service included five 6105 counseling warnings, and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ):  Article 92 (Failure to obey an order or regulation, 4 specifications), and Article 111 (Drunken operation of a vehicle, aircraft, or vessel).  Based on the offense(s) committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing
using the notification procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1: (Decisional) (Propriety/Equity)   RELIEF NOT WARRANTED.  The Applicant contends that he signed paperwork that stated he would receive a General, Under Honorable Conditions discharge if he successfully completed his restriction.  In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant provided no proof supporting his claim.  Further, the board did not find a document supporting the Applicant's claim in the record.  Based on the numerous offenses that the Applicant committed throughout his enlistment, the board determined that a pattern of misconduct was sufficiently established to justify the discharge given.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum for additional information.

_Docket _No.MD14-01595

, ex-PFC, USMC

CURRENT DISCHARGE AND APPLICANT'S REQUEST

Application Received: 20140820
Characterization of Service Received: (per DO 214) UNDER OTHER THAN HONORABLE CONDITIONS Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.3 [PATIERN OF MISCONDUCT]

Applicant's Request:  Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS) Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE

Prior Service:
Inactive: USMCR (DEP) 20070212- 20070813  COG	_Active:  _NONE

Period of Service Under  Review:
^Date ^of ^Current ^Enlistment: ^20070814 	Age at Enlistment:  17 (PARENTAL CONSENT) Period of Enlistment: 5 Years  0 Months
Date of Discharge: 20110422 	Highest Rank: LANCE CORPORAL Length of Service: 03  Year(s)  08  Month(s) 09  Day(s)
Education Level: 12 	AFQT: 64
MOS: 6694
Proficiency/Conduct Marks(# of occasions): 4.1 (7) /4.0 (7)  Fitness Reports: NOT APPLICABLE Awards and Decorations (per DO 214):   Rifle MM GWOTSMNDSM LoA
Periods of CONF: NONE NJP: 3
-20090924:   Article 92 (Failure to obey order or regulation, Consuming alcohol under the age of21) Awarded: FOP RESTR EPD Suspended: NONE

-20101122:   Article 92 (Failure to obey order or regulation, Consuming alcohol under the age of21) Awarded: RIR RESTR EPD FOP Suspended: RESTR EPD FOP (Vacated, date NFIR)

-20110318:   Article 92 (Failure to obey order or regulation, 2 specifications)
Specification 1: Physically controlled a vehicle while on a one year driving suspension
Specification 2: Knowingly served alcohol to an individual who was 19 years old.
Article 111 (Drunken or reckless operation of a vehicle aircraft or vessel, 2 specifications) Specification 1: On or about 20110227, operated a vehicle while intoxicated
Specification 2: On or about 20110227, operated an MCCS vessel while intoxicated
Awarded: RESTR EPD FOP Suspended: FOP

SCM: NONE SPCM: NONE
^CC: ^NONE

_Key: _NFIR _-Not _found _in _record
SPCM- Special court-martial
_CONF _-Confinement

RESTR- Restriction
_FOP- _Forfeiture _of _pay
_CC- _Civil _Conviction
NJP- Nonjudicial punishment	SCM - Summary court-martial
RIR- Reduction in rank
CCU- Correctional Custody Unit   EPD- Extra duties

CBW- Confinement on bread and water
Retention Warning Counseling:  5

-20090924:   For Violation of Article 92 (NJP on 20090924)
[Additional warning for same offense dated 20091008 found in record.]

· 20101202:    For Violation of Article 111, Drunken or reckless operation of a vehicle aircraft or vessel to wit: Driving after consuming a measurable amount of alcohol under the age of 21

- 20101202:    For violation of Article 134, General Article, Altering an ID card to read 1980 instead of 1989

-20101202:   For violation of Article 92, (NJP 20101122)

· 20101222:    For violation of Article 86, Absent without leave for failure to show for PT

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 I September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of22 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.

Key: 	NFIR- Not found in record SPCM- Special court-martial 
CONF - Confinement

RESTR - Restriction 
FOP- Forfeiture of pay 
CC- Civilian conviction

NJP - Nonjudicial punishment		SCM - Summary court-martial
RIR - Reduction in rank		EPD - Extra duties
CCU - Correctional Custody Unit		CB W - Confinement on bread and water

_Docket _No. _MD14-01595

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) Pl-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 100I, 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 relie£

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.

Reelistment/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