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USMC | DRB | 2007_Marine | MD0700069

Original file (MD0700069.rtf) Auto-classification: Denied

ex-, USMC
MD07-00069

Current Discharge and Applicant’s Request:

Application Received:                               20 061012
         Characterization of Service:
         Basis for Discharge :
         Discharge Authority :                       MARCORSEPMAN PAR 6210.3
         Duty Assignment/ Command at Discharge:    MWCS-28, MACG-28, 2DMAW, CHERRY POINT, NC 28533

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

Issues: 1. Summary Court -Martial sentence too harsh
2. Request Reenlistment Code change
3. Rejoin the Marine Corps
4. T reat ed as an example by Unit.
5. Post Service

Issues 1 , 2 &3: The Board determined that these Issues were not issues 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 th ese issue s .

Issue 4 : (Equity). The Applicant con tends that he was not warned and was the first in his unit to receive NJP for underage drinking. While he may feel he was made an example of, the record clearly reflects his pattern willful misconduct that eventually led to his discharge. The evidence of record did not show that the Applicant was either 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. 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 service was marred by two retention warnings, the award of one nonjudicial punishment (NJP), Article 92 , and a finding of guilty at a Summary Court Martial for violation of Article 92 (Wrongfully drinking alcohol while under the legal age and wrongfully driving while base privileges were suspended ) and violation of Article 123a (intent to deceive) . Violation of UCMJ Articles 92 and 123a are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to General (U nder Honorable Conditions) would be inappropriate.

Issue 5 : (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 character statement from his employer as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, 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.


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 .


Decision:

Date of Decision:                                            20 070830
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:

By a vote of the Characterization shal l .
By a vote of the Basis for Discharge shall due to .

Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214 :

         “ HKA1 ”

The Commandant, Headquarters USMC, Quantico, VA, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate .

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)                               19990224 - 19990906

Period of Service Under Review:
Date of Enlistment:                                 19990907
Years Contracted :
Date of Discharge:                                  20020812
Length of Service
         Active:                                     02 Yrs 11 Mths 05 D ys (does not exclude lost time)
         Inactive:                                            NONE
         Time Lost During This Period:             Days UA: 1 Days Confinement: 16

Education Level:                                    12
Age at this Enlistment:
AFQT:                                                 74
MOS:                                                  2532
Highest Rank:
Proficiency/Conduct marks (# of occasions):               4.0 ( 9 ) / 3.9 ( 9 )

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Basis for Discharge

20010504 :        NJP for violation(s) of UCMJ:
         Article 92: (2 specs).
         Spec 1: Failure to obey a lawful order in that on or about 20010429 Applicant did violate ABO 1746.2A by consuming alcohol while under the legal age of 21.
        Spec 2: Willfully disobey a lawful order i n that on or about 20010429, Applicant was cited by PMO for driving under the influence with BAC 0.8.
         Award: Forfeiture of $ 584 .00 for 2 months (1 month suspended for 6 months) , restriction and extra duty for 45 days, reduction to E- 2 .
         Not appealed.

20011221 :        Medical Evaluation by Dr S.A. S__, LT/MC/USNR:
         Diagnosis: Alcohol abuse 305.00 DSM IV
         Guidelines provided for Applicant : Abstain from alcohol use, assign to Unit Education and Prevention Program, process for separation.

20020102:        Notification of Outpatient Treatment Refusal.

20020124:        Summary Court-Martial.
         Charge I : Violation of the UCMJ, Article 92 (2 specs).
         Specification 1: Did on or about 20011125, violated ABO 1746.2A w Ch 1 and 2, by wrongfully drinking alcohol while under the legal age .
         Specification 2: Did on 20011125, violate ABO 5101.6L w Ch 1 and 2, by wrongfully driving while base privileges were suspended
         Charge II: Violation of the UCMJ, Article 123a.
        Specification: Did between 17 October and 19 November 2001 with intent to defraud and for the procurement of items of value, wrongfully and unlawfully utter to Marine Corp Community Services, certain drafts upon Account Number 9684195, of the Fort Sill National Armed Service Bank.”
        Finding: To Charge I and II, and the specifications thereunder, guilty.
         Sentence: Confinement for 20 days.
         CA action 20020201: Sentence approved and ordered executed.

20020212:        Counseling: Advised of deficiencies in performance and conduct (On 20020124 you received a Summary Court-Martial for violation of articles 92x2 and 123a. This was your first SCM. However, you have received one previous NJP for violation of articles 92x2. In both situations you have been found guilty for underage drinking.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20020304         Applicant UA 20020304-20020305

20020305:        Counseling: Advised of deficiencies in performance and conduct (Refusal of treatment of level II alcohol rehabilitation.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

20020509:        NJP for violation(s) of UCMJ:
         Article 86: UA from 0730, 20020304 to 0730, 20020305.
         Award: Forfeiture of $552.00 for 2 months (suspended for 6 months), restriction and extra duty for 45 days.
         Not appealed.

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       20020607
Basis for Discharge:     due to:


Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                 20020607
Rights Elected at Notification:
Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        ( 20020607 )
SJA review (date):                                  ( 20020805 )
Separation Authority (date):     COMMANDER, 2D MARINE AIRCRAFT WING ( 20020805 )
         Basis for discharge directed:             due to:
         Characterization directed:
Date Applicant Discharged:                         20020812

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               2

Related to Period of Service Under Review:
         From Service and/or Medical Record:               Other Records:

Related to Other Period(s) of Service:
         From Service and/or Medical Record:               Other Records:

Related to Post-Service Period:
         Employment:                                          Finances:
         Health/Medical Records:                            Substance Abuse:
         Family/Personal Status:                            Education:
        Community Service Efforts:                         References:
         Criminal Records:

Other:
         Additional Statements From Applicant:             From Representative:
        Other Documentation (Describe)

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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 .

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 of the UCMJ, Article 92 (Failure to Obey a Regulation) and Article 123a (I ntent to deceive) .

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, provi ded 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 grante d 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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USMC | DRB | 2007_Marine | MD0700069

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