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USMC | DRB | 2006_Marine | MD0601159
Original file (MD0601159.rtf) Auto-classification: Denied

ex-PVT, USMC
MD06-01159

 Current Discharge and Applicant’s Request :

Application Received:                               20 060905      
Characterization of Service:                      
Narrative Reason for Separation:                          
Discharge Authority :                                MARCORSEPMAN PAR 6206
Last Duty Assignment/ Command at Discharge:       HMLA-367 MAG-39 3D MAW CAMPEN CA

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


Decision:

 Date of Decision:                                            20070 802
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 the Characterization shall GENERAL (UNDER HONORABLE CONDITIONS)
By a vote of the Narrative Reason shall UNSATISFACTORY PARTICIPATION SERVICE

Applicant’s Issues, as summarized by the Board:
 1. Access Veteran’s Administration benefits.
2. Inequitable due to record of service.
3. Post service.


Summary of Service:

Prior Service:
 Inactive: USMCR (DEP)                               19940103-19940523


Period of Service Under Review:
 Date of Enlistment:                                 19940524      
Years Contracted :                                   ; Extension:
Date of Discharge:                                  19990715
Length of Service
         Active:                                      05 Yrs 01 Mths 22 D ys (Does not exclude lost time)
Time Lost During This Period:                      NONE
        
Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 70
MOS:                                                  6324
Highest Rank:                                       

Proficiency/Conduct marks (# of occasions):               3.9 (1)/3.9 (1)

Awards and Decorations (as listed on the DD Form 214):   RIFLE SHARPSHOOTER BADGE, SEA SERVICE DEPLOYMENT RIBBON ( 2 nd AWARD ), NATIONAL DEFENSE SERVICE MEDAL, CMC CERTIFICATE OF COMMENDATION




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

19960605:        Counseling: Advised of deficiencies in performance and conduct . Lack of initiative and judgment and failure to adequately maintain DDP account in a satisfactory manner in accordance with payment agreement. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19970225:        Counseling: Advised of deficiencies in performance and conduct . L ack of initiative, judgment and dependability demonstrate a maturity level not consistent with Marine Corps requirements. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
19970305 :        NJP for violation(s) of UCMJ:
         Article 86: UA (AWOL) from 0531, 19970208 to 0900, 199970208.
         Award: Forfeiture of $ 5 0 5 .00 for 2 months (suspended for 6 months) , restriction and extra duty for 15 days, reduction to E- 2 (suspended for 6 months) .
         Not appealed.
19970318:        Forfeiture of pay and reduction in pay grade awarded at NJP on 19970305 vacated.
19970325:        Counseling: Advised of deficiencies in performance and conduct . Poor judgment, lack of initiative and an inability to follow simple instruction. Specifically , unauthorized absences from 0900, 19970316 to 1300, 19970316 . N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
19970804:        Applicant assigned to the Weight Control Program.

19980519:        Counseling: Advised of deficiencies in performance and conduct . F ailed to lose weight while on the squadron weight control program. G ain of 13 pounds in the last 9 months (from Aug97 to Apr 98) shows unsatisfactory progress as stated in MCO 6106.10B . N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
19980817 :        NJP for violation(s) of UCMJ:
         Article 117: Did, on or about 19980626 use the words to wit: “Hey T_, what are you doing with those bitches? Come and hang with us,” SNM was referring to LCPL’s S_ and M_.
         Award: Forfeiture of $100.00 for 1 month, extra duty for 15 days, reduction to E-1.
         Not appealed.

Elements of Discharge: [ IN VOLUNTARY]

Date Notified:                                       NOT LEGIBLE ON MICROFICHE
 Basis for Discharge:                                NOT LEGIBLE ON MICROFICHE
 Least Favorable Characterization:                          NOT LEGIBLE ON MICROFICHE
Commanding Officer’s Intended Recommendation:    NOT LEGIBLE ON MICROFICHE

Date Applicant Responded to Notification:                 NOT LEGIBLE ON MICROFICHE
Rights Elected at Notification:
          Consult with Counsel                       NOT LEGIBLE ON MICROFICHE
         Obtain Copies of Documents                 NOT LEGIBLE ON MICROFICHE
         Submit Statement(s) (date)                         NOT LEGIBLE ON MICROFICHE
         Administrative Board                      

Commanding Officer Recommendation (date):        NOT LEGIBLE ON MICROFICHE
SJA review (date):                                  NOT LEGIBLE ON MICROFICHE
Separation Authority (date):     COMMANDING GENERAL, 3D MARINE AIRCRAFT WING ( 19990625 )
 Narrative Reason directed:                                 
Characterization directed:                                  (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:                         19990715


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 :                              2
         Other Period of Service:                                     
Related to Post-Service Period:
          Community Service :                                        
         Education :                                           7
         Employment :                                               
         Health /Medical :                                            
         Character Statements:                                 1
         Criminal Records Checks:                                         
         Additional Statements from Applicant:                  
Other Documentation (Describe Below)                      2

Total Number of Pages:                              12

D escription of Other Documentation:
        DeKalb County Recorder Certification, dtd December 15, 2005
         Press release dtd March 9, 2007 concerning admittance to a fraternal organization        


Applicant’s Issues as Summarized by the Board:
 1. Access Veteran’s Administration benefits .
2. Inequitable due to record 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 page one of the Addendum regarding this issue.

Decisional Issues:
 The Board accepted Issues 2 -3 for consideration.
Issue 2 (Equity). There is credible evidence in the record that the Applicant failed to conform to Marine Corps appearance and weight standards . Separation under these conditions generally results in characterization of service as honorable or gen e ral (under honorable conditions ) . The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

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 service was marred by being a weight control failure, four retention warnings, and two non judicial punishments (NJP) for violation of the Uniform Code of Military Justice (UCMJ) , Article 86 and 117. 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 provided one generic character statement and educational papers as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing . For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, 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 P1900.16E), effective 18 August 1995 until 31 August 2001, Paragraph 6206, UNSATISFACTORY PERFORMANCE.
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.


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.

Employmen t / 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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