Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700262
Original file (MD0700262.rtf) Auto-classification: Denied
ex-, USMC
MD07-00262
Current Discharge and Applicant’s Request
Application Received: 20061220   Characterization Received:
Narrative Reason: MISCONDUCT              Authority: MARCORSEPMAN 6210.6

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Reenlistment opportunities.
                           2. Civilian felony conviction modified to a misdemeanor should upgrade discharge.

Decision

 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.

Date: 2007 1 0 0 2 Location: Washington D.C. The Board found that

Discussion

 Issue (s) 1: The Board determined that th is Issue is n ot 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 .

Issue 2 (Equity ). T he Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. There is credible evidence in the record that the Applicant violated the UCMJ. The evidence of record does not demonstrate that the Applicant was not responsible for h is conduct or that he should not be held accountable for h is actions. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A 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. C ertain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by one nonjudicial punishment for violating the UCMJ Article 81 and 92 and one felony conviction for DUI with injury. An upgrade to honorable would be inappropriate .


Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20000126 - 20000201             
Period of Service Under Review:
 Date of Enlistment: 20000202               Years Contracted : ; Extension:                   Date of Discharge: 20020724
Length of Service : 02 Yrs 05 Mths 23 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 68          MOS: 6531 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.5 ( 5 ) / 4.4 ( 5 )
Awards and Decorations ( per DD 214): MERITORIOUS UNIT COMMENDATION, ARMED FORCES EXPEDITIONARY MEDAL, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, MARKSMAN RIFLE BADGE

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

 20000804 :        CO's NJP -- Viol UCMJ Art. 81 - Conspire with a host of other Marines to commit an offense under the UCMJ, Art. 92 - Violate a lawful written order.
         Awarded - - FOP ( $ 502.00 ) for ( 2 months).
20011027:        Applicant arrested and charged with felony DUI with injury.

20020311:        Civil Conviction: Superior Court of California, County of San Diego for violation of felony DUI with injury,
         Sentence: Fine of $1 , 600.00, restitution of $200.00, confinement for 180 days, probation for 3 years, community service for 400 hours.

20020325:        MARCORSEPMAN 6105 counseling for being convicted of a felony on 20020311. Being processed for administrative separation.

Discharge Process

 Date Notified:   20020320
Basis for Discharge:      DUE TO
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20020321
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        GENERAL (UNDER HONORABLE CONDITIONS) ( 20020606 )
SJA review (date):       ( 20020708 )
Separation Authority (date):     COMMANDING GENERAL, 3D MARINE AIRCRAFT WING ( 20020717 )
 Basis for discharge directed:   DUE TO
Characterization directed:     
Date Applicant Discharged:       20020724

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe) Superior Court of California, County of San Diego report

Pertinent Regulation/Law

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


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 to the Joint Service Review Activity, OUSD (P&R) PI-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 : 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

Similar Decisions

  • USMC | DRB | 2011_Marine | MD1101543

    Original file (MD1101543.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the administrative separation process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been...

  • NAVY | DRB | 2012_Navy | ND1201525

    Original file (ND1201525.rtf) Auto-classification: Denied

    With two NJPs and a civilian arrest in his current enlistment, the Applicant met the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct).Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains...

  • USMC | DRB | 2011_Marine | MD1101925

    Original file (MD1101925.rtf) Auto-classification: Denied

    However,after excluding the misconduct for which she was subsequently acquittedpost-service and based on the remaining misconduct of record (NJP for UA; 6105 retention warning, and civil conviction), the Board determined that partial relief in upgrading her discharge to General (Under Honorable Conditions) was warranted. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at...

  • USMC | DRB | 2013_Marine | MD1300196

    Original file (MD1300196.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2006_Marine | MD0600661

    Original file (MD0600661.rtf) Auto-classification: Denied

    The Applicant requests thatthe Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). PART I - ISSUES AND DOCUMENTATION 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 86, unauthorized absence for more than 30 days.

  • USMC | DRB | 2010_Marine | MD1000913

    Original file (MD1000913.rtf) Auto-classification: Denied

    Based on the offenses committed by the Applicant, command administratively processed for separation twice. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2006_Navy | ND0601082

    Original file (ND0601082.rtf) Auto-classification: Denied

    Elements of Discharge: [INVOLUNTARY] Discharge Process: Date Notified:20020311Reason for Discharge Least Favorable Characterization: Date Applicant Responded to Notification: 20020311Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement(s) (date)GCMCA Review Recommendation of Commanding Officer (date): 20020313 Discharge directed by (date):COMCRUDESGRU 20020315Narrative reason directed:Characterization directed: Date Applicant...

  • NAVY | DRB | 2010_Navy | ND1000672

    Original file (ND1000672.rtf) Auto-classification: Denied

    The Applicant contends his discharge is inequitable,because he was acquitted of both felony charges.On 6 February 2009, the Applicant was notified for administrative separation processing for the following reasons: Misconduct (Pattern of Misconduct), Misconduct (Commission of a Serious Offense), Misconduct (Civilian Conviction), and Alcohol Rehabilitation Failure. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and...

  • NAVY | DRB | 2013_Navy | ND1300201

    Original file (ND1300201.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. An administrative board...

  • NAVY | DRB | 2009_Navy | ND0900218

    Original file (ND0900218.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP) 20010516 - 20010828 Active: Period of Service Under Review: Date of Enlistment: 20010829Age at Enlistment: Period of Enlistment: Years Extension Date of Discharge: 20060405Highest Rank/Rate: FNLength of Service: Years Months 07 Days Education Level: AFQT: 37Evaluation Marks: Performance: NFIR Behavior: NFIR OTA: NFIRAwards and Decorations (per DD 214): (2)...