Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700853
Original file (MD0700853.rtf) Auto-classification: Denied
ex-, USMC
MD07-00853
Current Discharge and Applicant’s Request
Application Received: 20070605   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MARCORSEPMAN PAR 6210.5

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Applicant requests a review
                          

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: ( ). 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. 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. The Board found the Applicant service record incomplete. The Applicant provided no credible issue that the Board could consider as a mitigating factor in the determination of his characterization of service. There is credible evidence in the record that the Applicant used illegal drugs. 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. An upgrade 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)     20000331 - 20001011              Active:         
Period of Service Under Review:
 Date of Enlistment: 20001012      Years Contracted : ; Extension:   Date of Discharge: 20041011
Length of Service : 04 Yrs 00 Mths 00 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 27          MOS: 0311 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.3 ( 10 ) / 4.2 ( 10 )   Fitness reports :
Awards and Decorations ( per DD 214): SSDR (3 RD ), NDSM, MUC, PUC, LOA, Rifle MM

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

 20030529 :        NJP -- Viol UCMJ Art. 92 – Dereliction in the performance of duties in Babylon, Iraq on or about 20030506 from 0000 hours to 0600 , in that he willfully left his post to make phone call .
          Awarded - FOP ($ 368.00 ) for ( 1 month); Restr for ( 14 days) suspended for 3 months .
Discharge Process

 Date Notified:   NOT FOUND IN RECORD
Basis for Discharge:      DUE TO:
        
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):       
SJA review (date):       ( 20041007 )
Separation Authority (date):     COMMANDING GENERAL, 4 TH MARINE EXPEDITIONARY BRIGADE ( 20041007 )
Basis for discharge directed:   DUE TO:
Characterization directed:     
Date Applicant Discharged:       20041011

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective
01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.
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

  • NAVY | DRB | 2010_Navy | ND1001139

    Original file (ND1001139.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. The NDRB determined an...

  • USMC | DRB | 2007_Marine | MD0701063

    Original file (MD0701063.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: “ 2001 06 25 ” “ 0401 01 ” The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. Recommendation on...

  • NAVY | DRB | 2007_Navy | ND0700090

    Original file (ND0700090.rtf) Auto-classification: Denied

    Specifically with regard to an impropriety or inequity there is no evidence in the record, nor has the Applicant produced any evidence, to support her request for an upgrade in the characterization of her service. To the contrary the record documents that the Applicant was properly processed in accordance with the Naval Military Personnel Manual, (NAVPERS 15560C), Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS. Characterization...

  • NAVY | DRB | 2010_Navy | ND1000960

    Original file (ND1000960.rtf) Auto-classification: Denied

    The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a pattern of misconduct; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service -Under Other Than Honorable Conditions - was warranted. After reviewing the Applicant’s official service record, the NDRB determined that the Applicant’s...

  • USMC | DRB | 2007_Marine | MD0701086

    Original file (MD0701086.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, t 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, Absence without leave (for more than 30 days). ” Additional Reviews : Subsequent to a document...

  • NAVY | DRB | 2015_Navy | ND1501108

    Original file (ND1501108.rtf) Auto-classification: Denied

    Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions). 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 remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT. ”...

  • USMC | DRB | 2008_Marine | MD0800938

    Original file (MD0800938.rtf) Auto-classification: Denied

    Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: NONE DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the...

  • USMC | DRB | 2007_Marine | MD0701172

    Original file (MD0701172.rtf) Auto-classification: Denied

    ” 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. 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,...

  • USMC | DRB | 2013_Marine | MD1301856

    Original file (MD1301856.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: Pertinent Regulation/Law A. Paragraph 6210,...

  • NAVY | DRB | 2009_Navy | ND0900470

    Original file (ND0900470.rtf) Auto-classification: Denied

    Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service, grade or record of service. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found Pertinent Regulation/Law A. ” Additional Reviews :...