Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0800161
Original file (MD0800161.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20071107
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20000425 - 2000427               Active:         
Period of Service Under Review:
 Date of Enlistment: 20000428               Period of enlistment : Years Months             Date of Discharge: 20060602
Length of Service : Yrs Mths 05 D ys      Education Level:         Age at Enlistment:       AFQT: 40
MOS: 0481 Highest Rank:                           Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle , , , , , , ,

Periods of UA / CONF :

NJPs :    
         20010216: Art 92                  Awarded- FOP,RESTR                Susp- FOP
 20030720: Art 128                 Awarded- FOP                        Susp- None
20050609 : Art(s) 92,107            Awarded - , ,          Susp -
         20060127: Art 92 :                  Awarded - , ,          Susp - , ,

6105 Counseling :
         20010214: For Underage drinking
 20030725: For lack of leadership/expulsion from Cpl’s Course
         20041006 : For Art 86 ( UA /Failure to show at appointed place of duty) .
         20060202: For Art 92 (Driving on base w/o insurance or registration)
         20060207: F or Art 92 and 107 (Under Age Drinking/False Official Statement)


Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Unjust Discharge

Decision

Date: 20 08 214              Location: Washington D.C         R epresentation :

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

 : (Equity) The Applicant implies that h is discharge was unfair and was based on an isolated incident. 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 h er issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the his discharge was unfair. The Applicant’s service was marred by five retention warning s four nonjudicial punishments (NJP) for Articles 9 2x3, 107 and 128. Violations of UCMJ Article 92 , 107, and 128 are considered serious offenses for which a punitive discharge is authorized. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An 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

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, Discharge Process and evidence submitted by the Applicant, the Board found that

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective
1 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 92 , 1 07, 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

Similar Decisions

  • USMC | DRB | 2008_Marine | MD0800832

    Original file (MD0800832.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT.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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record, Discharge Process and evidence submitted by the Applicant, the Board found that Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT...

  • USMC | DRB | 2008_Marine | MD0800376

    Original file (MD0800376.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall .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. ” 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 Board has no authority to upgrade a...

  • USMC | DRB | 2007_Marine | MD0701082

    Original file (MD0701082.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) 20030108 - 20030120 Active: Period of Service Under Review: Date of Enlistment: 20030121Years Contracted:; Extension: Date of Discharge: 20060908Length of Service: Yrs Mths17 Dys Lost Time: Days UA: Days Confined: Education...

  • USMC | DRB | 2008_Marine | MD0800138

    Original file (MD0800138.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: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) -Divorce decree 20061121 DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2008_Marine | MD0800800

    Original file (MD0800800.rtf) Auto-classification: Denied

    6105 Counseling: 20050718: For Misconduct, Reckless Driving 20060304: Violations of Article 92, Failure to Obey a Lawful Order; Art 113, Misbehavior of a Sentinel 20060414: Violations of Articles 91, Insubordinate Conduct; Art 107, False Official Statement Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal...

  • USMC | DRB | 2008_Marine | MD0801152

    Original file (MD0801152.rtf) Auto-classification: Denied

    There was no evidence in the record, nor was any submitted by the Applicant, documenting he was not responsible for his actions or that the misconduct should be excused based on youth and immaturity. Again, the Board determined an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found Pertinent Regulation/Law A. ” Additional Reviews :...

  • NAVY | DRB | 2007_Navy | ND0700942

    Original file (ND0700942.rtf) Auto-classification: Denied

    Date: 20080103Location:Washington D.C Representation: Discussion Issues 1 -2: 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’s service was marred by one discharge warning and two non-judicial punishments for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (Failure to obey a direct order), Article 107 (False Official Statement), Article...

  • NAVY | DRB | 2008_Navy | ND0800657

    Original file (ND0800657.rtf) Auto-classification: Denied

    Decision Date: 20080530Location: Washington D.C Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL.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. The Board determined an upgrade or change would be inappropriate.In reviewing discharges, the Board presumes regularity in the...

  • USMC | DRB | 2008_Marine | MD0800965

    Original file (MD0800965.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall SEPERATION IN LIEU OF TRIAL BY COURTS-MARTIAL.Discussion : This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if...

  • NAVY | DRB | 2008_Navy | ND0801757

    Original file (ND0801757.rtf) Auto-classification: Denied

    The Board 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 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...