Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700827
Original file (MD0700827.rtf) Auto-classification: Denied
ex-, USMC
MD07-00827
Current Discharge and Applicant’s Request
Application Received: 20070524   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MARCORSEPMAN 6210.3

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Post-service conduct

Decision

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

Date: 20 071220             Location: Washington D.C.         Representation :

Discussion

Issue 1 ( ). The Board found that the Applicant had submitted credible evidence indicative of good post-service conduc t, and commends him for his honorable National Guard service. However, t here is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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. E xamples of documentation the Applicant could provide to the Board, in addition to the evidence of his Army service and educational and training pursuits, include proof of a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities , and of particular interest to the Board in his case, credible evidence of sobriety and a substance free lifestyle. A fter a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time.

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)     19970718 - 19970817              Active:         
Period of Service Under Review:
 Date of Enlistment: 19970818                        Years Contracted : ; Extension:   Date of Discharge: 19990322
Length of Service : 01 Yrs 07 Mths 05 D ys                   Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 76          MOS: 0411 Highest Rank:
Proficiency/Conduct marks (# of occasions):      NOT FOUND IN RECORD       Fitness reports :
Awards and Decorations ( per DD 214): Rifle , SSDR, LoA

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

 19980207 :        MARCORSEPMAN 6105 counseling for public intoxication (BAC .268) while underage drinking on 19980213 .

 19980598 :        Medical Record: Reason for visit: Referral for underage drinking.
         Diagnosis: ETOH dependence.
         Recommendation: IOP .

19980601:        Applicant began Intensive Outpatient (IOP) Treatment for diagnosed Alcohol Dependence.

19980617:        NJP -- Viol UCMJ Art. 92 (specs) – 19980315, underage drinking and disobey NCO order to stay in barracks.
         Awarded - FOP ($300.00) for (2 months).

19980706:        Apprehended by Hiroshima Police (BAC .167)

19980708:        Applicant terminated from IOP Treatment as a Treatment Failure.

19980716:        NJP -- Viol UCMJ Art. 91 – 19980706, disrespectful in deportment to NCOs; 92 – 19980706, underage drinking; 117 – 19980706, provoking gestures and words toward NCOs; and 134 – 19980706, drunk and disorderly.
         Awarded - FOP ($463.00) for (2 months), susp 6 months; RIR (E-1), susp 6 months; Restr for (45 days); Extra duties (45 days).

19980727:        MARCORSEPMAN 6105 counseling for third offense of drinking underage on 19980706, being drunk in public and being combative, disrespectful and using provoking speech and gestures to NCOs. Advised being processed for administrative separation.

19980803:        Applicant reassigned to Outpatient (OP) Treatment.

19980827:        Applicant completed OP Treatment.

19981127:        Suspension of punishment awarded on NJP of 19980716 vacated this date.

19981209:        MARCORSEPMAN 6105 counseling for underage drinking on 19981127.

19981210:        NJP -- Viol UCMJ Art. 92 – 19981127, underage drinking; 108 – 19981127, damage government rack through neglect; and 134 – 19981127, drunk and disorderly.
         Awarded - FOP ($463.00) for (2 months), susp 6 months; RIR (E-1), susp 6 months; Restr for (45 days); Extra duties (45 days).

19981215:        Director, Substance Abuse Counseling Center recommended administrative separation.
Discharge Process

 Date Notified:   19990105
Basis for Discharge:     
         DUE TO
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  19990 1 1 4
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ( undated )
         Administrative Board                       (on condition of receiving general discharge)

19990217:        Applicant waived administrative discharge board.
Commanding Officer Recommendation (date):        ( 19990217 )
SJA review (date):       ( date illegible )
Separation Authority (date):     CG, 1 ST MARINE AIRCRAFT WING ( 19990309 )
Basis for discharge directed:   DUE TO:
Characterization directed:     

19990317:        Service record page 11 counseling for violating liberty risk assignment on 19990313 (observed by duty officer intoxicated in Iwakuni City) and underage drinking on 19990313 - 19930314.

 Date Applicant Discharged:       19990322

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 01.

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 | MD0701082

    Original file (MD0701082.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) 20030108 - 20030120 Active: Period of Service Under Review: Date of Enlistment: 20030121Years Contracted:; Extension: Date of Discharge: 20060908Length of Service: Yrs Mths17 Dys Lost Time: Days UA: Days Confined: Education...

  • USMC | DRB | 2007_Marine | MD0700714

    Original file (MD0700714.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT Date: 20071205Location:Washington D.C.Representation: 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. 20031201 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Commanding Officer Recommendation (date): (20040104) SJA...

  • USMC | DRB | 2007_Marine | MD0700353

    Original file (MD0700353.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 . Discharge Process Charge(s) Preferred: 19970605 Charge(s) and Specification(s):Article 134: Adultery Date Applicant Submitted SILT request: 19970612 Consulted with or Waived Counsel: Acknowledged Understanding Elements: Acknowledged Guilt to: Article(s) 134 BCD/DD authorized for...

  • USMC | DRB | 2007_Marine | MD0701054

    Original file (MD0701054.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) 20000720 - 20010610 Period of Service Under Review: Date of Enlistment: 20010611Years Contracted:4; Extension: Date of Discharge: 20040217Length of Service: 02 Yrs 08 Mths07 DysLost Time:Days UA: Days Confined: Education Level:...

  • USMC | DRB | 2007_Marine | MD0701135

    Original file (MD0701135.rtf) Auto-classification: Denied

    Record 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. ” 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.

  • USMC | DRB | 2007_Marine | MD0700751

    Original file (MD0700751.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)20020725 - 20020902Active: Period of Service Under Review: Date of Enlistment: 20020903Years Contracted:; Extension: Date of Discharge:20051222Length of Service: 03 Yrs 03Mths20 DysLost Time:Days UA: Days Confined: Education...

  • USMC | DRB | 2007_Marine | MD0700509

    Original file (MD0700509.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 Service Prior Service: Inactive: USMCR (DEP) 20020812 - 20030804 Period of Service Under Review: Date of Enlistment: 20030805Years Contracted:4; Extension: Date of Discharge: 20060505Length of Service: 02 Yrs 09 Mths00 DysLost Time:Days UA: Days Confined: Education...

  • USMC | DRB | 2007_Marine | MD0700192

    Original file (MD0700192.rtf) Auto-classification: Denied

    Applicant claims his medical issues contributed to his misconduct and adverse discharge. (2) Wrongfully possess some amount of marijuana Article 112a: Wrongfully use marijuana.Date Applicant Submitted SILT request: 20051109 Consulted with or Waived Counsel: Acknowledged Understanding Elements: Acknowledged Guilt to: Article(s) 86 and 112a BCD/DD authorized for offense(s) Acknowledged Consequences of OTH: Type of Characterization Requested: Commanding Officer Recommendation...

  • NAVY | DRB | 2007_Navy | ND0700870

    Original file (ND0700870.rtf) Auto-classification: Denied

    Absent any documentation provided by the Applicant for the Board to consider, the Board determined that the Applicant’s service record did not mitigate the misconduct that resulted in the characterization of 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 Service Prior Service: Inactive: USNR (DEP)19970606...

  • USMC | DRB | 2007_Marine | MD0700657

    Original file (MD0700657.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)19960221 - 19960225Active: Period of Service Under Review: Date of Enlistment: 19960226Years Contracted:; Extension: Date of Discharge:19970213Length of Service: 00 Yrs 11Mths18 DysLost Time:Days UA: Days Confined: Education...