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USMC | DRB | 2006_Marine | MD0601126
Original file (MD0601126.rtf) Auto-classification: Denied

ex-, USMC
MD06-01126

 Current Discharge and Applicant’s Request :

Application Received:                               20 060823
Characterization of Service:                      
Narrative Reason for Separation:         INVOLUNTARY DISCHARGE (BOARD WAIVED) (PATTERN OF MISCONDUCT)
Discharge Authority :                                MARCORSEPMAN 6210
Last Duty Assignment/ Command at Discharge:       HQBN, MCLB BARTSOW, CA

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:               UNCHARACTERIZED
         Review Requested:                         
Representation:                                             


Decision:

 Date of Decision:                                            20 070712      
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:      PROPER
Regarding equity, the Board found the discharge:         EQUITABLE

By a vote of 5-0 the Characterization shall remain      
By a vote of 5-0 the Narrative Reason shall remain INVOLUNTARY DISCHARGE (BOARD WAIVED) (PATTERN OF MISCONDUCT)


Applicant’s Issues, as summarized by the Board:
 1. Change reenlistment code
2. Unfair treatment by Unit.
3. Unfair characterization of service.
4 . Post service.


Summary of Service:

Prior Service:
 Inactive: USMCR (DEP)             19870526 - 19870810               COG
 USMCR (DEP)               19920724 - 19930413               COG
Active: US MC                        19870811 - 19870925               

Period of Service Under Review:
 Date of Enlistment:                                 19930414
Years Contracted :                                   4 ; Extension:
Date of Discharge:                                  19950627
Length of Service
          Active:                                      02 Yrs 02 Mths 14 D ys (Does not exclude lost time)
 Time Lost During This Period:                                      

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 53
MOS:                                                  5811
Highest Rank:                                       

Proficiency/Conduct marks (# of occasions):               4.2 (6) / 4.0 (6)

Awards and Decorations (as listed on the DD Form 214):   NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, RIFLE MARKSMAN BADGE, PISTOL SHARPSHOOTER BADGE







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

19931102 :        Counseling: Advised of deficiencies in performance and conduct . Insubordinate conduct, lack of motivation, unsatisfactory performance. N ecessary corrective actions explained, sources of assistance provided, disciplinary warning issued.
19931118:         Counseling: Advised of deficiencies in performance and conduct . Disrespect to a noncommissioned officer, insubordinate conduct, lack of professionalism in attitude and performance around other services (specifically towards. U. S. Army Drill Sergeants) and unsatisfactory performance. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
         Rebuttal letter dated 19931119.

19940616 :        Counseling: Advised of deficiencies in performance and conduct . Insubordinate conduct, disrespect to a non commissioned officer, lack of professionalism in attitude and performance around peers and seniors, expression of racial statements of fellow Marines, and unsatisfactory performance. N ecessary corrective actions explained, sources of assistance provided, and discharge warning issued .
         Rebuttal letter dated 19940616

19940812 :        NJP for violation(s) of UCMJ:
          Article 92 : On or about 0720, 19940712 willfully disobeyed a direct order from Sgt P_ to complete a task and walking away from the Sgt P_ while the order was being given.
         Award: R estriction for 60 days, reduction to E- 2 .
          Not appealed.

 19941123 :        NJP for violation(s) of UCMJ:
          Article 134 : Wrongfully communicated to M_ K_ a threat to injure “I will cut you from here to here”, pointing from his chest to his stomach.
         Award: R estriction for 60 days, reduction to E- 1 .
          Not appealed. Rebuttal letter dated 19941129.

19941128:        Counseling: Advised of deficiencies in performance and conduct . Your frequent violations of the Uniform Code of Military Justice, which has resulted in you receiving 6 page 11 entries and 2 NJP’s within the past 14 months. You are advised that this misconduct is unbecoming of a Military Policeman and a Marine and will not be tolerated. N ecessary corrective actions explained, sources of assistance provided.

 19950424 :        NJP for violation(s) of UCMJ:
          Article 117 : On 19950321, wrongfully used provoking words toward GySgt.
         Award: Forfeiture of $ 3 00 .00 for 2 month s . Forfeiture suspended for 3 months.
         Not a ppealed.


Elements of Discharge: [ IN VOLUNTARY]

D ate Notified:                                       19950509
Basis for Discharge:                                DUE TO

Least Favorable Characterization:                         
Commanding Officer’s Intended Recommendation:   
Record Supports Narrative Reason:                          YES

Date Applicant Responded to Notification:                 19950509
Rights Elected at Notification:
Consult with Counsel                               
Obtain Copies                                      
Submit Statement(s) (date)                                 
Administrative Board                                ELECTED THAN (19950621)

SJA review (date):      
Separation Authority (date):     COMMANDING OFFICER, MARINE CORPS LOGISTICS BASE, BARSTOW, CA (19950627)
Narrative Reason directed:                                  MISCONDUCT DUE TO A
Characterization directed:                                  (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:                         19950627


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 :                                           4
         Employment :                                          0
         Health /Medical :                                       0
         Character Statements:                               1
         Criminal Records Checks:                                    1
         Additional Statements from Applicant:             2
Other Documentation (Describe Below)                      0

Total Number of Pages:                              9             
        


Applicant’s Issues, as summarized by the Board:
 1. Change reenlistment code
2. Unfair treatment by Unit.
3. Unfair characterization of service.
4 . 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- 4 for consideration.

Issue 2 (Equity). The Applicant implies that he was treated unfairly by his Unit. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

Issue 3 (Equity). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A general (under 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 t wo retention warnings and three nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Articles 92, 11 7, and 134 . Violations of UCMJ Articles 92 and 134 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 4 (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, good conduct, or favorable endorsements 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 provided one character statement , documentation of educational pursuits, and a document showing Non-Certified Record Search for an
undetermined time period. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable and continuous employment record and any documentation of community service. The Board determined that the documentation provided by the Applicant did not mitigate the circumstances 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. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective
27 June 1989 until 17 August 1995.
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 violations of the UCMJ, Article 92 , Failure to obey order, regulation and Article 134, Communicating a threat.

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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