Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700900
Original file (MD0700900.rtf) Auto-classification: Denied
ex-PFC, USMC
MD07-00900
Current Discharge and Applicant’s Request
Application Received: 20070622        Characterization Received:
Narrative Reason: MISCONDUCT Authority: MARCORSEPMAN 6210.3      

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Sent to the Fleet without proper training.
                           2. All NJPs were biased and improper.
                           3. Should have been discharged after medical review board.

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 (Equity). The Applicant contends that he was untrained to be a Marine and to abide by the rules and regulations that govern military service. The Applicant spent twelve weeks receiving instruction from the government in the making of a basic Marine. The Applicant bears the burden of proving that further infantry combat training is required to teach a Marine how to follow orders, be at the place of appointed duty, not possess illegal drug paraphernalia, and to not be disrespectful. There is no credible evidence or argument to support t his issue.

Issue 2 (Equity). The Applicant implies that he was treated unfairly by his Unit. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A n under other than honorable conditions d ischarge 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 t wo discharge warnings and five nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ). Violations of UCMJ Article ( s ) 90, 91, and 92 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.

Issue 3 (Equity). The Physical Evaluation Board ’s (PEB) action include determining a Marine as f it to continue naval service resulting in return to duty or u nfit to continue naval service, resulting in discharge with or without severance pay . A finding of fit by the PEB does not preclude subsequent determinations of unsuitability for deployment, PFT participation, disqualification for special duties, or administrative action to include possible separation . A Medical Evaluation Board (MEB) , convened at a military treatment facility , identif ies a Marine whose physical/mental qualification to continue on full duty is in doubt or whose physical/mental limitations preclude the Marine’s return to full duty within a reasonable period of time or at all. MEBs are convened to evaluate and report on the diagnosis, prognosis for return to full duty, plan for further treatment, and medical recommendation for disposition of Marines. A MEB does not make recommendations on the characterization of a 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)     20010709 - 20020623             
Period of Service Under Review:
 Date of Enlistment: 20020624      Years Contracted : 4 ; Extension:          Date of Discharge: 20040803
Length of Service : 02 Yrs 01 Mths 10 D ys         Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 18     AFQT: 49          MOS: 3432      Highest Rank: LCPL
Proficiency/Conduct marks (# of occasions):      3.9 ( 5 ) / 3.8 ( 5 )  
Awards and Decorations ( per DD 214): Rifle , NDSM


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

20030418 :        NJP -- Viol UCMJ Art icle(s) 86, 90, and 92.
          Awarded - FOP ($ 100 ) for ( 2 month s ); RIR to E-1 (suspended for 3 months); Restr for ( 45 days) (suspended for 3 months).

20030605 :        NJP -- Viol UCMJ Art icle 92, wrongfully possess drug paraphernalia
          Awarded - FOP ($ 575 ) for ( 2 month s ); RIR to E-1; Restr for ( 60 days).

20030605 :        MARCORSEPMAN 6105 counseling for possession of anabolic steroids.

20031007 :        NJP -- Viol UCMJ Art icles (s) 86, 2 specifications of failure to go, 91, and 92.
         Awarded - FOP ($ 400 ) for ( 2 months); CCU for 30 days.

20031009 :        MARCORSEPMAN 6105 counseling for recent NJP for violations of UCMJ Article(s) 86, 91, and 92. Discharge warning issued.

20040106 :        MARCORSEPMAN 6105 counseling for violation of UCMJ Article 87, missing movement. Discharge warning issued.

20040225 :        NJP -- Viol UCMJ Art icle(s) 91 and 117.
          Awarded - FOP ($ 278 ) for ( 1 month); Restr for ( 14 days); Extra duties ( 14 days).
20040326 :        NJP -- Viol UCMJ Art icle 86.
          Awarded - FOP ($ 552 ) for ( 2 month s ); Restr for ( 45 days); Extra duties ( 45 days).

Discharge Process

 Date Notified:   20040520
Basis for Discharge:      DUE TO
        
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20040504
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20040623 )
SJA review (date):       ( 20040621 )
Separation Authority (date):     COMMANDER, 1 ST SERVICE SUPPORT GROUP ( 20040627 )
Basis for discharge directed:   DUE TO
Characterization directed:     
Date Applicant Discharged:       20040803


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 01 Sep 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) 90, 91, and 92.


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 | 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:...

  • USMC | DRB | 2007_Marine | MD0701093

    Original file (MD0701093.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the circumstances 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. 20050318: Vacate FOP for 1 month, Restr and Extra duties for 45 days awarded at NJP dated 20050116.20050331: MARCORSEPMAN 6105...

  • USMC | DRB | 2007_Marine | MD0700768

    Original file (MD0700768.rtf) Auto-classification: Denied

    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 three retention warnings, four nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence), Article 91 (Insubordinate conduct toward a noncommissioned officer), Article 92 (Violation, Failure to obey other order), and Article 112 (Drunk on duty). Medical/Service...

  • USMC | DRB | 2007_Marine | MD0700770

    Original file (MD0700770.rtf) Auto-classification: Denied

    Diagnosis: Recommendation:20060130: Medical Record: Reason for visit: Discharge physical. ” 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 NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.

  • USMC | DRB | 2007_Marine | MD0700909

    Original file (MD0700909.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) 19991118 - 19991128 Period of Service Under Review: Date of Enlistment: 19991129 Years Contracted: 4; Extension: Date of Discharge: 20020607Length of Service: 02 Yrs 06 Mths08 DysLost Time:Days UA: Days Confined: Education...

  • USMC | DRB | 2007_Marine | MD0701171

    Original file (MD0701171.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. 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. With respect to a discharge adjudged by a court-martial, the action of the...

  • 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 | MD0701018

    Original file (MD0701018.rtf) Auto-classification: Denied

    Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.The Applicant’s service was marred by three retention warnings and four nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ), Article 92 (Failure to obey an order), Article 134 (Soliciting another to commit an offense), and Article 134 (Altering a base pass). Medical/Service Record Entries Related to...

  • 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 | MD0700885

    Original file (MD0700885.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) 19920813 - 19920922 Period of Service Under Review: Date of Enlistment: 19920923Years Contracted:4; Extension: Date of Discharge:19940923Length of Service: 02 Yrs 00 Mths 00 DysLost Time:Days UA: Days Confined: Education Level:...