Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700909
Original file (MD0700909.rtf) Auto-classification: Denied
ex-PVT, USMC
MD07-00909
Current Discharge and Applicant’s Request
Application Received: 20070619   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MARCORSEPMAN 6210.3

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Veteran’s benefits.
                           2. Youth and immaturity
                           3. Medical injury contributed to misconduct.

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: 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 (Equity). When a Marine has a minimum of two incidents of a nature which have been or would have been appropriately disciplined under Article 15, UCMJ, administrative separation proceedings are authorized using a pattern of misconduct as the basis for discharge. The infractions may be minor or more serious and t here must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

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. T he Applicant contends that h is problems were attributed to immaturity. While he may feel that this was the underlying cause of misconduct, the record clearly reflects willful misconduct and demonstrated he was unfit for further service. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A 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 service was marred by two discharge warnings and four nonjudicial punishments for Article(s) 86, Unauthorized absence, 91, Willfully disobeying and 92, Failure to obey order/regulation. Violations of Article(s) 91 and 92 are considered serious offense s 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. 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, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s narrative reason for discharge. In fact, the NDRB sees no connection between the Applicant’s misconduct and his implied medical condition.

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) 19991118 - 19991128               
Period of Service Under Review:
 Date of Enlistment: 19991129 Years Contracted : 4 ; Extension:    Date of Discharge: 20020607
Length of Service : 02 Yrs   06 Mths   08 D ys          Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 20     AFQT: 37          MOS: 3533 Highest Rank: LCPL
Proficiency/Conduct marks (# of occasions):      3.6 ( 7 ) / 3.4 ( 7 )  
Awards and Decorations ( per DD 214): NDSM, MM, Rifle MM


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

 20001020 :        NJP -- Viol UCMJ Art. 92 .
          Awarded - FOP ($ 262 ) for ( 1 month); Restr for ( 14 days); Extra duties ( 14 days) all suspended for 1 month. .
20011107:        Vacated suspension from NJP on 20001020.

20010713 :        NJP -- Viol UCMJ Art (s) 86, 91, and 92 .
         Awarded - FOP ($ 500 ) for ( 1 month); RIR ( E-2 ); Restr for ( 30 days); Extra duties ( 30 days).
20010731 :        MARCORSEPMAN 6105 counseling for failure to wear the designated physical training uniform. Discharge warning issued.

20010824 :        MARCORSEPMAN 6105 counseling for a pattern of misconduct. Being recommended for administrative separation.

20020322 :        NJP -- Viol UCMJ Art. 86, 3 specifications.
         Awarded - FOP ($ 550 ) for ( 2 months); RIR ( E-1 ); Restr for ( 45 days); Extra duties ( 45 days).
20020426 :        NJP -- Viol UCMJ Art. 92.
         Awarded - FOP ($ 552 ) for ( 1 month) ; Restr for ( 45 days); Extra duties ( 45 days).

Discharge Process

 Date Notified:   20020515
Basis for Discharge:      DUE TO
        
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20020515
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20020515 )
SJA review (date):       ( 20020523 )
Separation Authority (date):     COMMANDER, 1 ST FORCE SERVICE SUPPPORT GROUP ( 20020523 )
Basis for discharge directed:   DUE TO
Characterization directed:     
Date Applicant Discharged:       20020607


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) 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 | MD0700484

    Original file (MD0700484.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)19990313 - 19990517Active: Period of Service Under Review: Date of Enlistment: 19990518Years Contracted:Date of Discharge:20020630 Length of Service: 03 Yrs 01Mths13 DysLost Time:Days UA: Days Confined: Education Level: Age at...

  • NAVY | DRB | 2007_Navy | ND0700367

    Original file (ND0700367.rtf) Auto-classification: Denied

    The Applicant’s service was marred by 2 retention warnings, 6 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 90 (willfully disobeying a superior commissioned officer), 91 (insubordinate conduct towards a master chief petty officer), 92 (failure to obey written regulation), 95 (resistance), 112 (drunk on duty), 112a (wrongful use of a controlled substance) and 134 (unlawful entry) of the UCMJ. The Applicant’s conduct, which forms the primary basis...

  • 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:...

  • NAVY | DRB | 2007_Navy | ND0700447

    Original file (ND0700447.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of service. 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 errors on the...

  • NAVY | DRB | 2007_Navy | ND0700554

    Original file (ND0700554.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: USNR (DEP)19981222 - 19990815Active: Period of Service Under Review: Date of Enlistment: 19990816Years Contracted:; Extension: Date of Discharge:20001218 Length of Service: 01 Yrs 04Mths03 DysLost Time:Days UA: Days Confined: Education...

  • USMC | DRB | 2007_Marine | MD0700900

    Original file (MD0700900.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)20010709 - 20020623 Period of Service Under Review: Date of Enlistment: 20020624Years Contracted:4; Extension: Date of Discharge: 20040803Length of Service: 02 Yrs 01 Mths 10 DysLost Time:Days UA: Days Confined: Education Level:...

  • 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 | 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 | MD0700936

    Original file (MD0700936.rtf) Auto-classification: Denied

    Post Service – employed and volunteer service Personal Appearance Hearings NDRB Documentary Review Conducted (date): 20041008NDRB Documentary Review Docket Number: MD04-00679NDRB Documentary Review Findings: 5-0 no change Applicant Testified: YesApplicant Available for Questions: YesWitnesses: None Observers: NoneDate: 20080312Location: Washington D.C Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall MISCONDUCT.Discussion : either which the...

  • NAVY | DRB | 2007_Navy | ND0701177

    Original file (ND0701177.rtf) Auto-classification: Denied

    Date: 20080124Location:Washington D.C Representation: Discussion : 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. 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 nonjudicial punishment for a violation of the Uniform Code of Military...