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USMC | DRB | 2007_Marine | MD0700477

Original file (MD0700477.rtf) Auto-classification: Denied

ex-, USMC
MD07-00477

Current Discharge and Applicant’s Request

Application Received: 20070227 Characterization Received:

Narrative Reason: MISCONDUCT Authority: MARCORSEPMAN PAR 6210.6

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. VA Benefits
                           2. Discharge characterization inequitable because civil charges were d ismissed

Decision

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

Date: 20 071101             Location: Washington D.C.         Representation: American Legion

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 that the characterization of his discharge is inequitable because the civil charges were dismissed. A Marine may be separated for a commission of a serious military or civilian offense when the specific circumstances of the offense warrant separation. A military or civilian conviction is not required for discharge under this provision. The Applicant was afforded the right to consult with counsel and the right to appear before an administrative separation board. W hen 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 two retention warnings, assignment to the Marine Corps Body Composition Program, a Nonpunitive Letter of Caution, a 16 day period of confinement, and t he award of one nonjudicial punishment (NJP) for one violation of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence). An upgrade to honorable would be inappropriate.

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)     19990319 - 19990629              Active:
Period of Service Under Review:
Date of Enlistment: 19990630      Years Contracted : Extension:    Date of Discharge: 20060330
Length of Service : 06 Yrs 09 Mths 01 D ys          Lost Time : Days UA: Days Confine d : 16
Education Level:         Age at Enlistment:       AFQT: 56          MOS: 8411 Highest Rank:
Proficiency/Conduct marks (# of occasions):               Fitness reports :
Awards and Decorations ( per DD 214): NAVY AND MARINE CORPS ACHIEVEMENT MEDALW/2*, COMBAT ACTION RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, NAVY MERITORIOUS UNIT COMMENDATION, NAVY UNIT COMMENDATION, PRESIDENTIAL UNIT CITATION, NAVY CERTIFICATE OF COMMENDATION (2), MERITORIOUS MAST (7), CERTIFICATE OF APPRECIATION, LETTER OF APPRECIATION, EXPERT RIFLE BADGE (FOURTH AWARD), EXPERT PISTOL BADGE

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

20000310:        Applicant to confinement.

20000326:        From confinement.

20010404:        Applicant not recommended for promotion to LCPL for May 2001 because of immaturity.

20030131 :        NJP -- Viol UCMJ Art. 86 – Absent himself from his unit 2200, 20020808 until apprehended by PMO, 29 Palms Marine Corps Base on 2315, 20020808 .
         Awarded - FOP ($ 764.00 ) for ( 2 months) suspended for 6 months ; RIR ( E-3 ); Restr for ( 60 days) suspended for 6 months .

20051025:        MARCORSEPMAN 6105 counseling for lack of judgment in the performance of your duties as a Marine Recruiter, specifically on 20050326, you had members of the Delayed Entry Program at your personal quarters whereas you had admitted to consuming alcohol and handling your private firearms in their presence.

20060113:        Nonpunitive Letter of Caution for failure to exercise good judgment and discipline.

20060313:        MARCORSEPMAN 6105 counseling for pattern of misconduct while a member of this command. Your poor conduct and non-existent commitment to Marine Corps good order and discipline is painfully obvious. Reinforcing this is your complete disregard for military orders and civilian laws that govern the basis behavior expected of a United States Marine. Through your own self-admission, you have had sexual relations with a minor that was part of the Delayed Entry Program, engaged in fraudulent enlistment practices by instructing your applicants not to disclose their compl ete medical history, provided alcohol to minors, had poolees remain overnight at your personal quarters, engaged in domestic violence against your wife, and made false official statements to investigating officer during the conduct of the JAGMAN investigation. On the civilian side your repeated involvement with Niles Police Department where your were arrested for resisting arrest and discharging a firearm within city limits coupled with your most recent activity where you have been accused and charged with felony I rape and felony 4 domestic violence against your wife are direct indication of your failure to control yourself and the conduct you exhibit. Additionally, there have been two Military Protective Orders put into place against you in an effort to protect your wife and family from yourself. Moreover, Family Advocacy has determined that there is substantial evidence for domestic violence (Maltreatment) in your household .

Discharge Process

Date Notified:   20060313
Basis for Discharge:      DUE TO:

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                  20060314
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        ( 20060321 )
SJA review (date):       ( 20060329 )
Separation Authority (date):     COMMANDING GENERAL ( 20060329 )
Basis for discharge directed:   DUE TO:
Characterization directed:
Date Applicant Discharged:       20060330

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) Child Support Withdrawl Request, Court Records

Pertinent Regulation/Law

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

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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USMC | DRB | 2007_Marine | MD0700477

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