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USMC | DRB | 2008_Marine | MD0800910
Original file (MD0800910.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080325
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE)
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20060512 - 20060 5 18              Active:
Period of Service Under Review:
 Date of Enlistment: 20060519               Period of enlistment : Years Months             Date of Discharge: 20061214
Length of Service : Yrs Mths 21 D ys      Education Level:         Age at Enlistment:       AFQT: 32
MOS: 9900        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle NDSM

Period s of UA/ CONF: 20060822-20061006 (45) - UA, 20061108-20061130 (22) - Confinement .

NJPs :    
         20061013 : Art 86 (Unauthorized absence ), 45 days: 20060822-20061006 .
         Awarded - ($636 for 2 months), (45/45) . Susp - (5) .
        
S CMs :   
         20061108 : Art 91 (Disobeyed a SNCO ) .
         Sentence – CONF FOR 30 DAYS , FOP ($849 for 1 month) .

SPCMs:  
        

CC:      
        
6105 Counseling :
         20061018 : For violation of Article 86.

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. Eligible for an uncharacterized discharge.
2. Unfair treatment by command.
3. Post service conduct.

Decision

 Date: 20 08 0 627             Location: Washington D.C .         R epresentation :

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

 ( ) : . The Board inferred the Applicant feels he should have been granted an Uncharacterized discharge due to the fact he was separated within 180 days of entering the service. An Uncharacterized discharge is only appropriate during the first 180 days of continuous active service where processing under a more serious basis is not warranted. The Applicant's unauthorized absence and failure to obey a SNCO were considered serious offenses for which an other than honorable characterization of service was appropriate. The Board determined a n upgrade of the Applicant ’s characterization of service would be inappropriate.
( ) : . The Applicant contends he was treated unfairly by his command . In support of this, the Applicant submitted hospital admission paperwork as well as reporting orders, presumably to demonstrate he was unable to carry out his reporting orders due to an illness (bronchitis). The Applicant’s record of service was marred by a non-judicial punishment for violation of UCMJ Article 86 ( U nauthorized absence) and a Summary Court Martial for violation of UCMJ Article 91 ( F ailure to obey a SNCO). Both of these violations are considered serious offenses, punishable by a bad conduct or dishonorable discharge and imprisonment. The Board noted the Applicant was admitted to St. Mary's Medical Center on 19 June 2006 and discharged the same day with instructions to follow up in two days. The Applicant was in receipt of orders to report for Permissive Recruiters Assistance on 22 August 2006 and then to the School of Infantry on 29 August 2006 . There is no indication in the record the Applicant's failure to report as ordered was in any way mitigated by his diagnosis of bronchitis. Furthermore, there is no evidence in the Applicant’s record, nor did he provide any, showing where he notified his command (or any Marine Corps agency) of an illness which would delay his report date, or to ask for help ; he surrendered from b eing UA on 06 October 2006 . After his return he received non-judicial punishment and his command tried to rehabilitate him and send him to a training company at the School of Infantry. He disobeyed an order issued by a SNCO to train and was sent to a Summary Court Martial and subsequently discharged. The record did not support the claim of unfair treatment nor did it show he was singled out for punishment or ridicule. The Board determined an upgrade to the characterization of discharge would be inappropriate.

( ) : . 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 character reference and evidence of his work as a volunteer 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, evidence of a drug free existence, and certification of non-involvement with civil authorities. 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. Again, the Board determined an upgrade or change 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. 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 s of the UCMJ, Article s 86 (unauthorized absence) and 91 (willful disobedience of a SNCO) .

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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