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USMC | DRB | 2007_Marine | MD0701063
Original file (MD0701063.rtf) Auto-classification: Denied
ex-PFC, USMC
MD07-01063    
Current Discharge and Applicant’s Request
Application Received: 20070726        Characterization Received:
Narrative Reason: MISCONDUCT Authority: MARCORSEPMAN 6210.6      

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Administratively discharged after expiration of EAS.
                          
Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY.

Date: 20 08 011 7             Location: Washington D.C.         Representation :

Discussion

Issue 1 (Propriety): The 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 NDRB review ed all of the available records , supporting documents, facts, e lements of d ischarge , evidence submitted by the Applicant , and circumstances unique to this case . A particular circumstance of interest was the apparent erroneous recalculation of block 12a of the D-214, “date entered active duty this period”. Additionally, the recalculation of the end of active service was erroneous. The end result was that the Applicant was processed for administrative separation after his EAS has expired. The NDRB believes that these computations were clearly initiated by the command to allow for further time for administrative discharge proceedings. The Applicant’s conduct throughout the full enlistment period, as measured by proficiency/conduct scores, mandate an honorable characterization of service. The NDRB noted that there were impropriet ies in the Applicant’s discharge action , is convinced that this procedural error was prejudicial to the Applicant, and therefore an impropriety in the characterization of the Applicant’s service did occur.

In cases where no other reason for separation set forth in the Naval Military Personnel Manual or Marine Corps Separation and Retirement manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. Although the Applicant committed misconduct during the enlistment, that narrative reason for separation can not be coupled wit h an honorable discharge . T herefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority.

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

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 2001 06 25 ”
         “ 0 4 0 1 01 ”
        
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Summary of Service

 Prior Service:
 Inactive: USMCR (DEP)     20010425 - 20010718                   
Period of Service Under Review:
 Date of Enlistment: 20010 625               Years Contracted : ; Extension:            Date of Discharge: 20060929
Length of Service : 04 Yrs 01 Mths 01 D ys                  Lost Time : Days UA: Days Confine d : 4 42 IHFA
Education Level:         Age at Enlistment: 20     AFQT: 36          MOS: 3531      Highest Rank: CPL
Proficiency/Conduct marks (# of occasions): 4.1 ( 10 ) / 4.0 ( 10 )
Awards and Decorations ( per DD 214): SSDR x 4, HSM, GWOTSM, KDSM, NDSM, NUC, MM, RIFLE MM


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

20040611:        NJP -- Viol UCMJ Art. 92 .
         Awarded - Restr for ( 14 days) ; Extra duties ( 14 days).

20040614:        MARCORSEPMAN 6105 counseling for failure to maintain Marine Corps height and weight standards. Discharge warning issued.

20041007:        NJP -- Viol UCMJ Art. 92 and 128 .
         Awarded - FOP ($ 792 ) for ( 2 months) ($200 for 2 months suspended for 6 months) ; RIR ( E-3 ); Restr for ( 60 days).

20041007:        MARCORSEPMAN 6105 counseling for your NJP for violations of UCMJ Articles 92 and 128.

20050324:        NJP -- Viol UCMJ Art. 92 .
         Awarded - FOP ($ 600 ) for ( 2 months) ($600 for 1 month suspended for 6 months) ; RIR ( E-2 ); Restr for ( 45 days); Extra duties ( 45 days).

20050328:        MARCORSEPMAN 6105 counseling for consuming alcohol and wearing civilian clothes while on liberty risk status. Discharge warning issued.  

20050531:         Applicant IHFA (Japan).
20051026:        Applicant sentenced to prison in Japan.

20060816:        Applicant released on parole from Japanese prison after 442 days IHFA. New End of Active Service date is 20060909.


Discharge Process

 Date Notified:   20060803      
Basis for Discharge:      DUE TO
        
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20060803
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Administrative Board Date :       20060912
Findings, by preponderance of the evidence:     BY DUE TO .
         BY SEPARATION WARRANTED.
Recommendation on Separation:   BY      
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 20060912 )
SJA review:      (20060913)
Separation Authority (date):     COMMANDING GENERAL, MARINE CORPS BASE ( 20060913 )
Basis for discharge directed:   DUE TO
Characterization directed:     
Date Applicant Discharged:       20060929


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)       Letter of deficiency in the Administrative Discharge Board


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 .

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) 92 and 128 .




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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