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USMC | DRB | 2007_Marine | MD0700379
Original file (MD0700379.rtf) Auto-classification: Denied
ex-, USMC
MD07-00379
Current Discharge and Applicant’s Request
Application Received: 20070130   Characterization Received:
Narrative Reason: MISCONDUCT              Authority: MARCORSEPMAN 6210.3

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Veterans Benefits - Equity
                           2. Applicant claims he was injured in Iraq and his discharge should be reviewed and upgraded.
                           3. Applicant claims his discharge is inequitable because it was based on one isolated incident.

Decision

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

Date: 20 071025                                       Location: Washington D.C.

Discussion

 Issue(s) 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 ( ) : When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant ’ s performance and ability to conform to the military ’ s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant ’ s stated condition, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant ’ s misconduct. In fact, the NDRB sees no connection between the Applicant ’ s misconduct and his stated medical injury. The Applicant ’ s misconduct began before his alleged medical condition and continued after his condition was resolved.

Issue 3 ( ): When a Marine ’ s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as under other than honorable conditions 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 the award of nonjudicial punishment (NJP) on 3 occasions for violations of the Uniform Code of Military Justice (UCMJ). The Applicant ’ s misconduct included unauthorized absence, disobeying and order, attempt to illegally use a stolen credit card, conspiracy, assault and unlawful entry. Violation of UCMJ Articles 91 (willfully disobeying), 92 (failure to obey order or regulation), 128 (Assault) and 130 ( housebreaking) are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. The Applicant ’ s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect his misconduct, and fall below that required for an honorable characterization of service.

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)     20000625 - 20010605              Active:
Period of Service Under Review:
 Date of Enlistment: 20010606               Years Contracted :        Date of Discharge: 20050317
Length of Service : 03 Yrs 09 Mths 12 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 32          MOS: 3531 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.2 / 4.1   Fitness reports :
Awards and Decorations ( per DD 214): COMBAT ACTION RIBBON, SEA SERVICE DEPLOYMENT RIBBON (2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, PRESIDENTIAL UNIT CITATION-NAVY, RIFLE SHARPSHOOTER BADGE

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

 20030212 :        NJP -- Viol UCMJ Art. 86 - Absent from appointed place of duty, Art. 91 - Disobeyed order.
          Awarded - FOP ($ 31.6.00 ) for ( 1 month); Restr for ( 14 days); Extra duties ( 14 days).
20040629:        MARCORSEPMAN 6105 counseling for derelict in the performance of duty and disrespectful toward the Battalion Commander.

 20041117 :        NJP -- Viol UCMJ Art. 86 - Fail to go to appointed place of duty, Art. 92 - Failed to obey lawful order.
         Awarded - FOP ($ 370.00 ) for ( 1 month); Restr for ( 14 days); Extra duties ( 14 days).
20041122:        MARCORSEPMAN 6105 counseling for violation of Art. 92.

 20041207 :        NJP -- Viol UCMJ Art. 80 - Attempt to illegally use LCpl K_’s stolen credit card to purchase clothing items at an off-base store, . Art. 81 - Conspire with Sgt P, Cpl R_ LCpl S, LCpl G_, LCpl W_, PFC B_, PFC M_, and PFC B_ to commit assault to LCpl G_, Art. 128 - Go to Camp Foster with the intentions of helping Sgt P_ fight LCpl G_, Art. 130 - Unlawfully enter the room ob LCpl K_ to assault LCpl G_ .
         Awarded - FOP ($ 668.00 t) for ( 2 months); RIR ( E-2 ); Restr for ( 45 days); Extra duties ( 45 days).
20050107 :        MARCORSEPMAN 6105 counseling for conspiring to commit assault against a fellow Marine, illegally enter another Marine’s room and attempt to illegally use a stolen credit card to purchase clothing items on 20040725.

20050120:        Applicant was given a separation physical examination. Applicant was found medically qualified for separation from active duty.
Discharge Process

 Date Notified:   20050107
Basis for Discharge:      DUE TO:
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20050107
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20050107 )
SJA review (date):       ( 20050115 )
Separation Authority (date):     COMMANDING GENERAL, 3D MARINE DIVISION ( 20050116 )
 Basis for discharge directed:   DUE TO:
Characterization directed:     
Date Applicant Discharged:       20050317

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 P1900.16F), 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 s 91, 92 , 128 and 130.


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

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