Upgrade.Vet

USMC | DRB | 2006_Marine | MD0601075

Original file (MD0601075.rtf) Auto-classification: Denied

ex-PFC, USMC
MD06-01075

Current Discharge and Applicant’s Request :

Application Received:                               20 060808
Narrative Reason for Separation:                           MISCONDUCT
Character of Service:
Discharge Authority :                                MARCORSEPMAN 6210.3
Last Duty Assignment/ Command at Discharge:       mwss 172 mwsg 17 1stmaw okinawa ja

Applicant’s Request:
         Narrative Reason change to:               NONE REQUESTED
         Characterization chang e to:
         Review Requested :
Representation:

Decision:

Date of Decision:                                             20 070628
Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES
Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:         EQUITABLE

By a vote of the Characterization shall UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of the Narrative Reason shall MISCONDUCT

Summary of Service :

Prior Service:
Inactive: USMC R (DEP)                               19990220 - 19991128
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 19991129
Years Contracted :                                   ;
Date of Discharge:                                  20031120
Length of Service:                                  03 Yrs 11 Mos 22 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:                      24
Days Unauthorized Absence:                         NONE
Days Confinement:                                   24

Education Level:
Age at this Enlistment:
AFQT:                                                 50
MOS:                                                   0411
Highest Rate/Rank:                                   LCPL

Performance Evaluation Averages (number of marks):
P roficiency :                                         4.2 (10)
Conduct :                                              4.0 (10)

Awards and Decorations (as listed on the DD Form 214):
RIFLE MARKSMAN BADGE, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3), LETTER OF APPRECIATION (2), MERITORIOUS MAST

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20010719:        Summary Court-Martial.
         Charge I: Violation of the UCMJ, Article 92 (2 specifications):
         Specification 1: Willfully disobeyed a lawful written order by not signing out with the DNCO while on liberty risk. Plea : Guilty. Findings : Guilty.
         Specification 2: Willfully disobeying a lawful written order by consuming alcohol while under the legal age of 21. Plea : Guilty. Findings : Guilty.
         Charge II: Violation of the UCMJ, Article 121:
         Specification: Willfully stole 11 CDs out of a local Japanese Nationals private vehicle. Plea: Guilty. Findings: Guilty.
         Charge III: Violation of the UCMJ, Article 134:
         Specification: Willfully entered an unauthorized storage area in the barracks. Plea: Guilty. Findings: Not Guilty
         Sentence: Forfeiture of $871.40, confinement for 30 days, reduction to E-1.
         CA action 20010719: Sentence approved and ordered executed.

20010719:        Counseling: Advised of deficiencies in performance and conduct (Consuming alcohol while under the legal age of 21.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20010719:        Applicant to confinement at Joint Forces Brig, Marine Corps Base, Smedley D. Butler.

20010811:        Applicant from confinement (24 days). [Extracted from DD Form 214, Block 29.]

20010817 :        NJP for violation(s) of UCMJ:
         Article 91.
         Article 92.
         Award: Forfeiture of $482 for 2 months, restriction and extra duty for 45 days.
         No indication of appeal in service record..

20010822:        Counseling: Advised of deficiencies in performance and conduct . Failure to obey standing orders concerning the Regiment/III MEF Liberty Policies. On 20010812 you were found to have been consuming alcohol in the barracks room of a Marine in your work section. You are under the age of 21 years old and know that under age drinking is a violation of the III MEF Liberty Campaign Plan. You recently received Regimental NJP because of your misconduct. N ecessary corrective actions explained, sources of assistance provided , discharge warning issued .

20011127 :        Counseling: Advised of deficiencies in performance and conduct . Lack of responsibility and poor judgment i n the handling of your financial requirements. Specifically for making checks without sufficient funds. Your disregard and poor management of your financial responsibilities are not reflective of those traits and qualities associated with a U.S. Marine. N ecessary corrective actions explained, sources of assistance provided.

20020514 :        Counseling: Advised of deficiencies in performance and conduct . Lack of judgment and irresponsibility specifically your lewd behavior by urinating in a bottle on MCCS Bus during a Company event. You are advised that this type of behavior and extremely poor judgment is not reflective of those traits and qualities associated with being a U.S. Mar ine. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20030212:        NJP for violation(s) of UCMJ:
         Article 92 (2 specifications):
         Specification 1: On or about 0430, 20030126, failed to obey a lawful general order by wrongfully leaving base without signing out with a liberty buddy.
         Specification 2: On or about 1530, 20030208, violated a lawful order by wrongfully consuming alcohol while on liberty risk program.
         Awarded: Forfeiture of $645 for 2 months , restriction for 60 days, reduction to E-2.

20030505 :        Counseling: Advised of deficiencies in performance and conduct . M y established pattern of misconduct as evidenced by my derogatory counseling entries, two nonjudicial punishment dated 20010817 and 20030212 and my Summary Court-Martial court dated 20010719. N ecessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20030617:        Substance Abuse Rehabilitation Department: Evaluation revealed a pattern of alcohol use which indicates a substance abuse disorder.
         Recommendation: Applicant is scheduled for outpatient treatment at the Counseling Center. While awaiting treatment applicant should maintain weekly meetings with command SACO and attend two Alcoholic Anonymous meetings per week.

20030822:        Counseling: Advised of deficiencies in performance and conduct . Violation of Article 92, alcohol-related incident, showing up at outpatient alcohol abuse treatment smelling like alcohol. Administered a breathalyzer test which indicated a BAC of .036 on the first test, and a .032 fifteen minutes later on the second test. You violated MCO P1700.24 assigning me to alcohol abuse treatment signed 20030820, by Lt. Col S. F. K_, which was acknowledged by, and signed by me on 20030820. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

20030822:        Intake evaluation notes from the Substance Abuse Center.

20030828:        Continuation notes from the Multidisciplinary Treatment Team (Substance Abuse Counselor and Clinical Psychologist).

20030904:        Discharge notes from the Multidisciplinary Treatment Team (Substance Abuse Counselor and Clinical Psychologist).

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        20030724
Basis for Discharge :                                MISCONDUCT DUE TO

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation :
Record Supports Narrative Reason :                          YES
Date Applicant R esponded to N otification:                 20030724
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)                          ( NONE FOUND IN RECORD)

A dministrative Board Date:                         20031003
Findings and Recommendations :
Basis for Discharge Supported:                     ; ; Vote: MAJORITY
Separation Warranted:                               ; Vote: MAJORITY
Recommend ation Regarding Separation:              PATTERN OF MISCONDUCT; ; Vote: MAJORITY
Recommendation Regarding Characterization:       ; V ote: MAJORITY

Recommendation of Commanding Officer (date):     UNDER OTHER THAN HONORABLE CONDITIONS ( 20030724 )
SJA review (date):                                   ( 20031027 )
Discharge directed by (date) :     COMMANDING GENERAL, 1 ^ST MARINE AIRCRAFT WING ( 20031031 )
Narrative reason directed :                                   MISCONDUCT DUE TO
Characterization directed:
Date Applicant Discharged:                         20031120

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            1
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 0

Total Number of Pages:                            1

Applicant’s Issues, as summarized by the Board:
1. Post service employment opportunities.
2. Quality of service.
3. Post service.

Issue 1: The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding this issue.

Decisional Issues:
The Board accepted Issues 2-3 for consideration.

Issue 2 (Equity). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of five retention warnings, two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Articles 91 and 92, and a Summary Courts Martial for violations of the Uniform Code of Military Justice (UCMJ) Article 92 and Article 121. Violations of UCMJ Articles 91, 92, 121 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate. Relief denied.

Issue 3 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. The Applicant did not provide any documentation o f post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Relief denied.

In reviewing discharges, the Board 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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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 s of the UCMJ, Article 91 , Willfully disobeying, Article 92, Failure to obey an order, and Article 121, Larceny .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe that 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 . 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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

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USMC | DRB | 2006_Marine | MD0601075

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