Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0701134
Original file (MD0701134.rtf) Auto-classification: Denied
ex-PVT, USMC
MD07-01134
Current Discharge and Applicant’s Request
Application Received: 20070814   Characterization Received:
Narrative Reason: MISCONDUCT Authority: MARCORSEPMAN 6210.3      

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Misconduct caused by undiagnosed medical condition.
                           2. Post service.

Decision

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

Date: 20 08 0117             Location: Washington D.C.         Representation :

Discussion

Issue 1 (Equity). 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. There is credible evidence in the record that the Applicant committed a pattern of misconduct and was an alcohol rehabilitation failure. 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 misconduct. The evidence of record does not demonstrate that the Applicant was not responsible for h is c onduct or that he should not be held accountable for h is actions.

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 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. C ertain serious offenses warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by four discharge warnings and three nonjudicial punishments for violations of Article(s) 92, 121, and 134 of the UCMJ. V iolation s of Article (s) 92 and 121 are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade or change would be inappropriate.

Issue 2 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided one employment reference letter and one medical document as d ocumentation of post-service accomplishments . The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable and continuous employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the Applicant ’s post service conduct did not mitigate the misconduct 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. 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)     19971023 - 19971109                   
Period of Service Under Review:
 Date of Enlistment: 19971110               Years Contracted : ; Extension:            Date of Discharge: 20010608
Length of Service : 03 Yrs 06 Mths 29 D ys                            Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 45          MOS: 0351 Highest Rank: LCPL
Proficiency/Conduct marks (# of occasions):      4.3 ( 13 ) / 3.6 ( 13 )        
Awards and Decorations ( per DD 214): SSDR, COA, RIFLE EX, PISTOL EX


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

 19990105 :        NJP -- Viol UCMJ Art. 92, 2 specifications.
         Awarded - FOP ($ 260 ) for ( 1 month);Restr for ( 14 days); Extra duties ( 14 days).
19990107 :        MARCORSEPMAN 6105 counseling for violations of UCMJ Article 92, underage drinking. Discharge warning issued.

19990521 :        MARCORSEPMAN 6105 counseling for failure to sign out in the liberty log book and going to an establishment that serves alcohol. Discharge warning issued.

19991008 :        NJP -- Viol UCMJ Art. 121 .
         Awarded - FOP ($ 537 ) for ( 2 months); RIR ( E-2 ); Restr for ( 45 days); Extra duties ( 45 days).
20000115:        Applicant completed Level III alcohol treatment in Norfolk, VA.

20010128:        Base driving privileges are revoked for driving under the influence of alcohol. BAC .10.

20010131 :        MARCORSEPMAN 6105 counseling for recklessly operating a motor vehicle while intoxicated. Discharge warning issued.
20010208:        CSACC letter outlining Applicant’s third failure to attend mandatory aftercare sessions.

20010212 :        MARCORSEPMAN 6105 counseling for operating a vehicle under the influence of alcohol and failure to abide by your aftercare program assigned by base CSACC. Discharge warning issued.
20010309 :        NJP -- Viol UCMJ Art. 92 and 134 .
         Awarded - FOP ($ 584 ) for ( 2 months) (suspended for 6 months) ; RIR ( E-2 ); Restr for ( 45 days); Extra duties ( 45 days).

Discharge Process

 Date Notified:   20010322
Basis for Discharge:      DUE TO
         DUE TO ALCOHOL REHABILITATION FAILURE
        
Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  20010322
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20010328 )
SJA review (date):       ( 20010521 )
Separation Authority (date):     COMMANDING GENERAL, MARINE CORPS EDUCATION COMMAND ( 20010521 )
Basis for discharge directed:   DUE TO
Characterization directed:     
Date Applicant Discharged:       20010608      


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 .

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 121.




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 | 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 | MD0700267

    Original file (MD0700267.rtf) Auto-classification: Denied

    20010608 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Commanding Officer Recommendation (date): (20010608) SJA review (date): (20010702) Separation Authority (date): COMMANDING GENERAL, 2D MARINE AIRCRAFT WING (20010702) Basis for discharge directed: DUE TO: Characterization directed: Date Applicant Discharged: 20010720 Types of Documents Submitted by Applicant and Considered By BoardRelated to Military...

  • USMC | DRB | 2007_Marine | MD0701052

    Original file (MD0701052.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 a five discharge warnings and four nonjudicial punishments for violations of UCMJ Article(s) 86 and 92. ” 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 | MD0700155

    Original file (MD0700155.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. ” 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. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.

  • 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 | MD0700452

    Original file (MD0700452.rtf) Auto-classification: Denied

    Service Record 5. 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)19960731 - 19960903Active: Period of Service Under Review: Date of Enlistment: 19960904Years Contracted:Date of Discharge:20000824 Length of Service: 03 Yrs 11Mths21 DysLost Time:Days UA: Days Confined:...

  • USMC | DRB | 2007_Marine | MD0700744

    Original file (MD0700744.rtf) Auto-classification: Denied

    However, after 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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record...

  • USMC | DRB | 2007_Marine | MD0700795

    Original file (MD0700795.rtf) Auto-classification: Denied

    Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of ServicePrior Service: Inactive: USMCR (DEP)19930528 - 19930811Active: Period of Service Under Review: Date of Enlistment: 19930812Years Contracted:; Extension: Date of Discharge:19961107Length of Service: 03 Yrs 02Mths26 DysLost Time:Days UA: Days Confined: Education Level: Age at Enlistment:AFQT: 88MOS:2515Highest Rank: Proficiency/Conduct marks (# of...

  • USMC | DRB | 2007_Marine | MD0700818

    Original file (MD0700818.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, Court-Martial proceedings, Discharge Process and evidence submitted by the Applicant, the Board found that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offensesthat he committed. 97-1606Applicant Discharged: 19971023 Types of Documents Submitted by Applicant and Considered By BoardRelated...

  • USMC | DRB | 2007_Marine | MD0701233

    Original file (MD0701233.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)20020307 - 20021014Active: Period of Service Under Review: Date of Enlistment: 20021015Years Contracted:; Extension: Date of Discharge:20050414Length of Service: Yrs Mths29 DysLost Time:Days UA: Days Confined: Education Level:...