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USMC | DRB | 2008_Marine | MD0800963
Original file (MD0800963.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080314
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)    20010314 - 20010625              Active:
Period of Service Under Review:
 Date of Enlistment: 20010626               Period of enlistment : Years Months             Date of Discharge: 20060118
Length of Service: Yrs Mths 23 D ys     Education Level:         Age at Enlistment:       AFQT: 56
MOS: 2621        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations (per DD 214): Rifle : NFIR, , , AF Outstanding Unit Awd, Jt MU Awd.

Periods of UA/ CONF :

NJPs:    4
         20020816: Art 81 (Conspiracy)
         Awarded - RIR(E2), RESTR EPD (15/15). Susp - RIR, RESTR EPD (10/10) for 3 months.
         20030212: Art 91 (Disrespect to an NCO)
         Awarded - RIR (E2). Susp - NONE.
         20040830: Art 92 (Failure to obey lawful order)
         Awarded - RIR (E2). Susp - NONE.
         20050831: Art 86 (Failure to go to appointed place of duty), Art 92 (Failure to obey lawful order)
          Awarded - RIR(E2), FOP (1/2 Pay for 2 months), RESTR (60). Susp - FOP and RESTR.

SCMs:   

SPCMs:  

CC:     

6105 Counseling : 4
         20021018: For failure to report to work and being late posting as the duty NCO.
         20040521: For failing to report to class.
         20040624: For assignment to the BCP.
          20050927: For discharge processing for a pattern of misconduct.

Types of Documents Submitted

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

Additional Statements From Applicant:             From Representation:              From Member of Congress:
Other Documentation (Describe)
         Unit Punishment Book (5812) forms for each of the Applicant's in-service NJPs.
          MOL printout of Applicant's in-service Pro/Con summary dated 04 Mar 2008.

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

Applicant’s Issues

 1. Propriety.
2. OTH too harsh.
Decision

 Date: 200806 19             Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall Misconduct .
Discussion
: ( ) The Applicant claims the discharge was improper because he was never notified he could appear before "the board" and he was never provided the results and reasoning behind "the board's" decision to override his Commanding Officer's recommendation for a General (under honorable conditions) discharge. In reviewing the Applicant's discharge package, the NDRB noted the Applicant was notified by the Commanding Officer of 'H' Company, Marine Cryptologic Support Battalion on 08 September 2005 of separation proceedings being taken against him and of the CO's recommendation to separate the Applicant with a General (under honorable conditions) discharge. The Applicant was also notified the least favorable characterization of service he could be awarded would be an under other than honorable conditions. The CO noted this was just a recommendation and the Commander, MCB, Quantico would make the final determination as to which characterization he would receive. Furthermore, the Applicant was notified he could request a hearing before an Administrative Discharge Board and obtain copies of documents forwarded to the Commander, MCB Quantico supporting the proposed separation. On the same day, the Applicant acknowledged these rights and decided to request a hearing and to obtain copies. On 06 January 2006, the Director of the MCB, Quantico Law center reviewed the discharge package prior to the Commander, MCB making his determination and noted the Applicant had changed his mind and waived his right to a Hearing on 04 January 2006 and instead opted to submit written matters for consideration for a General (under honorable conditions) discharge. The NDRB found the Applicant knowingly and intelligently waived his right to request and appear at an Administrative Discharge Hearing; even though he realized the Commander, MCB, Quantico had final adjudicating authority to determine the discharge the applicant would receive. While the Board did not have evidence the Applicant received copies of the Discharge Package, it 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. Furthermore, even if the Applicant did not receive copies of the discharge package, it would not have changed the outcome of the discharge. The NDRB found the discharge to be proper and an upgrade would be inappropriate.

: ( ) . The Applicant feels an under other than honorable conditions discharge is too harsh considering has particular misconduct. An administrative discharge is not punishment. An under other than honorable conditions discharge is appropriate when the negative aspects of a member's military service outweigh the positive. The NDRB noted the Applicant received four 6105 entries while in service for various incidents of unauthorized absences and failures to report for duty, assignment to the BCP, and for notification of separation proceedings for a pattern of misconduct. Furthermore, the Applicant received four non-judicial punishments for violations of UCMJ Article 81 (conspiracy), 108 (damaging government property), 91 (disrespect to an NCO), 92 (failure to obey order), and 86 (failure to go to appointed place of duty). Violations of Articles 108, 91, and 92 are considered serious offenses and could have resulted in a punitive discharge and imprisonment if adjudged at a Special or General Court Martial. Again, the NDRB determined an upgrade to the discharge would be inappropriate.
In reviewing discharges, the Board 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 the discharge was proper and equitable.







Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 Sep 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 81, 91, 92, and 108 .

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, provided 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 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, 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.
Employment/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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