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USMC | DRB | 2008_Marine | MD0800914
Original file (MD0800914.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080408
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)     97 1009 - 980817                  Active:
Period of Service Under Review:
 Date of Enlistment: 980818                 Period of enlistment : Years Months             Date of Discharge: 20001002
Length of Service : Yrs Mths 00 D ys      Education Level:         Age at Enlistment:       AFQT: 80
MOS: 6114        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle , Pistol .

Periods of UA / CONF : 000502-00517 (15) Confinement

NJPs :    
         19990319 : Art and Art . Awarded - .
Susp - .
         20000106 : Art . Awarded - (45/45), ($479 for 2 months) .
Susp - (Vacated on 20000126) .

S CMs :   
         20000501 : Art 86 (failure to go to appointed place of duty) . Sentence - , Restr 10 Days .

6105 Counseling :
         19980717 : For not controlling his aggressive behavior.
         19990319: Retention warning. Assault and insubordinate conduct.
         20000105: Retention warning. Driving into another vehicle with the intent to cause damage.
         20000627: Retention warning. Driving without license or insurance. Driving with stolen plates. Driving while under state suspension.

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. Reenlist o pportunities.
2. Undiagnosed illness .
3. Record of s ervice .
4. Discharge implications .

Decision

 Date: 20 08 06 06             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall M ISCONDUCT .
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 .

: ( ) . The Applicant claims his undiagnosed illness (sleeping disorder) contributed to some of his misconduct (failure to go to appointed place of duty). During Board reviews the government is presumed to conduct its affairs with regularity unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. There is no indication in either the Applicant's service record or other evidence submitted by the Applicant to indicate he was not r esponsible for his actions while in service. The Board determined it was not necessary to order the Applicant's service medical record as violations of the U niform C ode of M ilitary J ustice, Art 86 (failure to go to appointed place of duty) were only a small part of his pattern of misconduct. While in service, the Applicant received four separate counselings for agg ressive behavior; assault ; insubordinate conduct ; driving into another vehicle with the intent to cause damage ; drivin g without license or insurance; d riving with stolen license plates and driving while under a state driving suspension. Furthermore, he received two non-judicial punishments for assault, insubordinate conduct, and failure to obey a lawful order. These violations establish a pattern of misconduct and are wholly unrelated to any sleep disorder diagnosis and reflect the Applicant's willful disregard for the established order and discipline of military service. T he Board determined an upgrade, based on the Applicant’s claim of an undiagnosed sleeping disorder , was not warranted.

: ( ) . The A pplicant claims his overall record of service was positive to include graduating as the Honor Graduate out of MOS school. When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as honorable. “ ” d ischarge 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 service was marred by a pattern of misconduct documented by two non-judicial punishments and a Summary Court Martial. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of the Naval Service and f alls far short of w hat is required for an upgrade in the characterization of service. Again, the Board determined an upgrade was not warranted.

: ( ) . The Applicant claims he did not know the full implications of receiving an “ other than honorable conditions ” characterization of service. Specifically, he did not know he would not be eligible for medical treatment from the Department of Veteran's Affairs. The Board noted the applicant signed an "Acknowledgement of My Rights to be Exercised or Waived D uring Separation Proceedings" on 27 July 2000. In the acknowledgement he indicated he did not consult with counsel even though the acknowledgement clearly states that it was in his best interest to do so. Had he met with counsel, such counsel would have fully explained the implications of receiving an OTH characterization of service to include medical benefits. Again, the Board determined an upgrade was not warranted.

A fter 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 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 91 (Insubordinate Conduct) or 92 (Failure to Obey Order or Regulation).



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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