Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0800585
Original file (MD0800585.rtf) Auto-classification: Denied

ex-PVT, USMC
Current Discharge and Applicant’s Request
Application Received: 20080123
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP) 20020215 - 20020225
Period of Service Under Review:
 Date of Enlistment: 20020225      Period of enlistment : Years Months             Date of Discharge: 20030509
Length of Service : 01 Yrs 02 Mths   13 D ys          Education Level:         Age at Enlistment: 19     AFQT: 37
MOS: 0311        Highest Rank: PFC                
Proficiency/Conduct marks (# of occasions):      NFIR
Awards and Decorations ( per DD 214): NDSR, Rifle MM

Periods of UA / CONF : 3

NJPs :     2
         20030113 : Art(s) 86, 92 x 2      Awarded – FOP, RESTR, EPD                 S usp -
         20030304 : Art(s) 92 x 2, 117     Awarded – RIR, FOP, RESTR, EPD   Susp - FOP

6105 Counseling : 1
         20030224 : For minor infractions of the UCMJ.

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. Reenlistment opportunities .
2. Employment opportunities.
3. Personal issues contributed to misconduct.
4. Discharge should have been for medical reasons.
5. Post service.

Decision


 Date: 20 08 0404             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
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. The Applicant is directed to the Addendum regarding .

Issue 3 (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. The Applicant contends that his problems were attributed to his undocumented personal problems. While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. There is credible evidence in the record that the Applicant committed serious offenses. 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 general ( under honorable conditions ) discharge is warranted when 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 one discharge warning and two nonjudicial punishments for violations of Article(s) 86, 92, and 117 of the UCMJ. A v iolation of Articl e 92 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade or change would be inappropriate.

Issue 4 (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 misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his undocumented medical condition.

Issue 5 (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 a commercial driving t r a ining summary as evidence 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 a verifiable and continuous employment record, educational pursuits, 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, 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 P1900.16E), 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 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 | 2008_Marine | MD0800581

    Original file (MD0800581.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 | 2007_Marine | MD0700969

    Original file (MD0700969.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 two retention warnings, three nonjudicial punishment for a violation of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence), Article 92 (Failure to obey lawful order), and Article 112a (Wrongful use of a controlled substance). Medical/Service Record Entries Related to Characterization of...

  • USMC | DRB | 2008_Marine | MD0800966

    Original file (MD0800966.rtf) Auto-classification: Denied

    ” 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. If a former member has been discharged for more than 15 years, has already been granted 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,...

  • NAVY | DRB | 2007_Navy | ND0700979

    Original file (ND0700979.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 Administrative Corrections to the Applicant’s DD 214Summary of Service Prior Service: Inactive: USNR (DEP)20020220 - 20020224Active: Period of Service Under Review: Date of Enlistment: 20020225Years Contracted:; Extension: Date of Discharge:20051031Length of Service: 03 Yrs...

  • USMC | DRB | 2007_Marine | MD0701021

    Original file (MD0701021.rtf) Auto-classification: Denied

    Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge 19961104: NJP -- Viol UCMJ Art. 19980625 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Administrative Board Date : 19980922 Findings, by preponderance of the evidence: BY SEPARATION Recommendation on Separation: BY Recommendation on Characterization: BY Commanding Officer Recommendation (date): SJA review...

  • NAVY | DRB | 2007_Navy | ND0700814

    Original file (ND0700814.rtf) Auto-classification: Denied

    The Board determined that the Applicant's undocumented claims of good post service conduct 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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical...

  • NAVY | DRB | 2007_Navy | ND0701068

    Original file (ND0701068.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)19920806 - 19930124Active: Period of Service Under Review: Date of Enlistment: 19930125Years Contracted:; Extension: Date of Discharge:19950315Length of Service: 02 Yrs 01Mths21 DysLost Time:Days UA: 1 Days Confined: Education...

  • USMC | DRB | 2007_Marine | MD0700965

    Original file (MD0700965.rtf) Auto-classification: Denied

    The Applicant’s service was marred bythreeretention warnings, two nonjudicial punishments (NJP), and a Summary Courts-Martial for violations of the Uniform Code of Military Justice (UCMJ), Article 90 (Willfully disobeying a superior commissioned officer), Article 92 (Willfully disobeying a lawful order), Article 107 (False official statement), and Article 134 (Restriction Breaking) and Article 134 (Adultery). After a thorough review of the available evidence, to include the Applicant’s...

  • USMC | DRB | 2007_Marine | MD0700962

    Original file (MD0700962.rtf) Auto-classification: Denied

    Post Service DecisionBy a vote of the Characterization shall .By a vote of the Narrative Reason shall MISCONDUCT-PATTERN OF MISCONDUCT Date:20Location:Washington D.C.Representation: Discussion Issue 1: ().The Applicant contends that his problems are attributed to his personal issues the resulted in one incident in 42 months 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...

  • USMC | DRB | 2011_Marine | MD1101782

    Original file (MD1101782.rtf) Auto-classification: Denied

    The NDRB is only authorized to review the propriety and equity of a discharge and is not authorized to restore rank or authorize financial restitution. Reliefgranted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE.The Applicant is...