Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0800219
Original file (MD0800219.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20071127
Characterization of Service Received:
Narrative Reason for Discharge: MINOR DISCIPLINARY INFRACTION (WITH BOARD)
Authority for Discharge: MARCORSEPMAN (mINOR DISCIPLINARY INFRACTIONS)

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19921125 - 19930613              Active:         
Period of Service Under Review:
 Date of Enlistment: 19930614               Period of enlistment : Years Months             Date of Discharge: 19970627
Length of Service : Yrs Mths 14 D ys      Education Level:         Age at Enlistment:       AFQT: 61
MOS: 0351        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle , Pistol , , JMUA ,

Periods of UA / CONF : /92 days

NJPs :    
         19950517 : Art(s) 86 (2 specs) .   Awarded - , , Susp -
         19970410 : Art(s) 92, 128 .        Awarded - , , Susp -

SPCMs:  
         19940520 : Art(s) 128 . Sentence – CONF , RIR , FOP .
6105 Counseling :
         19941129 : For pulling into a Texaco Gas Station and refueling your vehicle without paying and driving away, which was witnessed by a deputy sheriff.
         19951019 : For frequent involvement with civilian authorities, specifically : delaying an officer ; resisting arrest ; driving on revoked state license without insurance ; obstructing an officer ; refusing to give your name to an officer and being held for 8 days IHCA as a suspect for armed robbery ; charges still pending.
          19961221 : For failure to meet established grooming standards, failure to properly maintain issued 782 gear, and failure to maintain personal appearance.
         19970115 : For financial irresponsibility.
         19970131 : For lack of individual effort on the Marine Corps physical fitness test conducted this date. Failure to maintain minimum grooming standards.
         19970212 : For leaving daughter unattended in base housing.
         19970325 : For NJP for multiple unauthorized absences and assault of spouse.

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. Immature
2. Post Service
Decision


 Date: 20 08 0516             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT-MINOR DISCIPLINARY INFRACTION (WITH BOARD) .
Discussion

 Issue 1 (Equity): The Applicant contends his misconduct was mitigated due to his immaturity during his time of service. While he may feel this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. 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.

The Applicant’s record of service was marred by one special court-martial for violation of UCMJ Article 128 (Assault), two nonjudicial punishments for violations of Articles 86 (Unauthorized Absence), 92 (Failure to obey), and 128 (Assault), and seven retention warnings. The Applicant could have received six months imprisonment and a punitive discharge upon conviction by a special or general court martial. 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, Record, Discharge Process and evidence submitted by the Applicant, the Board found

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 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 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 a personal statement as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, evidence of a drug free existence, and certification of non-involvement with civil authorities. The Board determined the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.


Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
31 Jan uary 19 97 until 31 Aug ust 2001.

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 86, 92, and 128 ( 2 specifications) .

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 | MD0800161

    Original file (MD0800161.rtf) Auto-classification: Denied

    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. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance...

  • NAVY | DRB | 2008_Navy | ND0801010

    Original file (ND0801010.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.The Applicant provided a personal statement and documentation of his honorable discharge from the New York Army National Guard as evidence of post-service accomplishments. The Board determined an upgrade or...

  • NAVY | DRB | 2008_Navy | ND0800643

    Original file (ND0800643.rtf) Auto-classification: Denied

    Awarded - Susp - 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) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • 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 | MD0801541

    Original file (MD0801541.rtf) Auto-classification: Denied

    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 post-service conduct mitigates the reason for the characterization of discharge.Besides the personal statement provided on the DD Form-293, the Applicant failed to provide any additional statements and evidence of post The Board determined based on the limited documentation provided an...

  • USMC | DRB | 2008_Marine | MD0801539

    Original file (MD0801539.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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): DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • 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...

  • USMC | DRB | 2008_Marine | MD0800821

    Original file (MD0800821.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT.Discussion : (Equity) 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. Based on this evidence, an upgrade or change in the characterization of service by the Board is unwarranted.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record, Discharge Process and...

  • NAVY | DRB | 2007_Navy | ND0700349

    Original file (ND0700349.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues:1. The Board determined based on the documentation provided an upgrade would be inappropriate and the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the extent of his UCMJ violations.The Board determined an upgrade was not warranted. Additionally, the NDRB does not have the...

  • NAVY | DRB | 2007_Navy | ND0700369

    Original file (ND0700369.rtf) Auto-classification: Denied

    Awarded - FOP ($amount) for (months); RIR (paygrade); Restr for (# days); Extra duties (# days).20030319: Retention Warning for provoking speeches or gestures, assault, sub-standard performance as stated on NAVPERS 1610/2 dated 20011207-20020715, lack of responsibility, unsatisfactory demeanor/conduct, failure to live up to the Navy Core Values, unwillingness and/or inability to follow lawful orders and/or regulations, unwillingness and/or inability to work with others, failure to understand...