Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700325
Original file (MD0700325.rtf) Auto-classification: Denied
ex-PVT, USMC
MD07-00325
Current Discharge and Applicant’s Request
Application Received: 20070118   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MARCORSEPMAN 6210.2

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Reenlistment Opportunities
                           2. Discharge based on wrong information
 3. Post Service

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT

Date: 20 071011                                             Location: Washington D.C.

Discussion

 Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2: ( ) The Applicant contends his discharge was based on the wrong information, i.e. 172 days UA annotated on his DD 214. The Board found this entry to be in error and will recommend correction of Block 29 on the DD 214. The Board considered the Marine’s entire record for his enlistment contract. 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 two retention warnings and two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized Absence), Article 128 (Assault), and a Summary Court Martial for violation of Article 90 (Failure to obey) and Article 134 (Breaking restriction). An upgrade to honorable would be inappropriate.

Issue 3: ( ). 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 provide d documentation of community service, an Assistant Nursing Certification, and verification of acceptance to college. The Applicant's efforts need to be more encompassing. For example, the Applicant c ould have produced evidence of a verifiable employment record , certification of non-involvement with civil authorities , and college transcripts . 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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that

Summary of Service

 Prior Service:
 Inactive: USMCR (DEP)     19960514 - 19962205              Active:         

Period of Service Under Review:
 Date of Enlistment: 19961106      Years Contracted : ; Extension:          Date of Discharge: 19981028
Length of Service : 1 Yrs 11 Mths 23 D ys   Lost Time : Days UA: Days Confine d : 24
Education Level: 12       Age at Enlistment: 18     AFQT: 60          MOS: 0341 Highest Rank:
Proficiency/Conduct marks (# of occasions):      3.2 ( 8 ) / 2.9 ( 8 )     Fitness reports :
Awards and Decorations ( per DD 214): RIFLE SHARPSHOOTER BADGE

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

 19970 8 25 :        NJP -- Viol UCMJ Art 86 (absent from 19970813 to 19970819 ) .
         Awarded – FOP $450 (suspended for 4 months); Restr and ED for (45 d ays)

19970902:        6105 Counseling for recent NJP

19980131:        Applicant counseled for substandard performance

19980324:        NJP -- Viol UCMJ Art 86 (unauthorized absence), 116 (breach of peace), 128 (assault).
         Awarded –Restr and ED for (45 days).

19980326:        6105 Counseling for 2 nd NJP.

19980514 :        SCM -- Viol UCMJ Art. 86 (unauthorized absence), 90 (disobey an order), and 134 (breaking restriction) -.
         Awarded - FOP ( $617 ); Confinement ( 30 days).



Discharge Process

 Date Notified:   19980 515
Basis for Discharge:      DUE TO:
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  19980603
Rights Elected at Notification:
         Consult with Counsel                       [ ELECTED ]
         Obtain Copies of Documents                [ ]
         Submit Statement(s) (date)                         [ ]
         Administrative Board                       [ ELECTED ]

Administrative Board Date :       19980727
Findings, by preponderance of the evidence:     BY DUE TO .
         SEPARATION WARRANTED.
Recommendation on Separation:  
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        [ ] ( 19980 9 06 )
SJA review (date):       [ ] ( 19980911 )
Separation Authority (date):     CG, Marine Corps Base Hawaii ( 19980914 )
Basis for discharge directed:   DUE TO:
Characterization directed:     
Date Applicant Discharged:       19981028

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)      

Pertinent Regulation/Law

 A Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 Aug 200 1 .

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 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, 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

Similar Decisions

  • USMC | DRB | 2007_Marine | MD0700236

    Original file (MD0700236.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative error(s) on the original DD Form 214: “JJE2 ” “ COURT MARTIAL”The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. If a former member has...

  • USMC | DRB | 2007_Marine | MD0700570

    Original file (MD0700570.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:None submitted. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USMCR (DEP)19930312 - 19940123Active: Period of Service Under Review: Date of Enlistment: 19940124Years Contracted:; Extension:...

  • NAVY | DRB | 2007_Navy | ND0700780

    Original file (ND0700780.rtf) Auto-classification: Denied

    After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of...

  • NAVY | DRB | 2007_Navy | ND0700447

    Original file (ND0700447.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of service. After a thorough review of the available evidence, to include the applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found that Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative errors on the...

  • USMC | DRB | 2007_Marine | MD0700261

    Original file (MD0700261.rtf) Auto-classification: Denied

    Discharge Process Date Notified: 19930428Basis for Discharge: DUE TO Least Favorable Characterization: Commanding Officer’s Intended Recommendation: Date Applicant Responded to Notification:19930428Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Commanding Officer Recommendation (date): (19930428) SJA review (date): (19930518) Separation Authority (date): COMMANDER, 2D MARINE DIVISION(19930519) Basis for...

  • USMC | DRB | 2007_Marine | MD0700295

    Original file (MD0700295.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of ServicePrior Service: Inactive: USMCR (DEP)20011221 - 20020818Active: Period of Service Under Review: Date of Enlistment: 20020819Years Contracted:; Extension: Date of Discharge:20050201 Length of Service: 02 Yrs 05Mths12 DysLost Time:Days UA: 44 Days Confined: Education...

  • USMC | DRB | 2007_Marine | MD0700293

    Original file (MD0700293.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that...

  • USMC | DRB | 2007_Marine | MD0700900

    Original file (MD0700900.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of ServicePrior Service: Inactive: USMCR (DEP)20010709 - 20020623 Period of Service Under Review: Date of Enlistment: 20020624Years Contracted:4; Extension: Date of Discharge: 20040803Length of Service: 02 Yrs 01 Mths 10 DysLost Time:Days UA: Days Confined: Education Level:...

  • USMC | DRB | 2007_Marine | MD0700962

    Original file (MD0700962.rtf) Auto-classification: Denied

    Post Service DecisionBy a vote of the Characterization shall .By a vote of the Narrative Reason shall MISCONDUCT-PATTERN OF MISCONDUCT Date:20Location:Washington D.C.Representation: Discussion Issue 1: ().The Applicant contends that his problems are attributed to his personal issues the resulted in one incident in 42 months of service. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and...

  • USMC | DRB | 2007_Marine | MD0700455

    Original file (MD0700455.rtf) Auto-classification: Denied

    Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge 20010702: Applicant counseled concerning an alcohol-related incident specifically getting drunk and going into an unauthorized absence status. Applicant chose not to make a statement.20031016: Medical Record: Reason for visit: Facial Injury due to fight/altercation: Diagnosis: Recommendation:20031201: MARCORSEPMAN 6105 counseling for pattern of misconduct, violation of Articles 86, 92,121, and 134. ...