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USMC | DRB | 2008_Marine | MD0800976
Original file (MD0800976.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080319
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)    20030312 - 20030817              Active:
Period of Service Under Review:
 Date of Enlistment: 20030818               Period of enlistment : Years Months             Date of Discharge: 20061024
Length of Service: Yrs Mths 07 D ys     Education Level:         Age at Enlistment:       AFQT: 44
MOS: 0121        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations (per DD 214): Rifle : , Pistol : , , , , ICM, LoA.

Periods of UA/ CONF :

NJPs:   
         20050809 : Art 86 (failure to go to appointed place of duty) .
         Awarded - (E2), ($692 for 2 months), (45/45). Susp - .

SCMs:   

SPCMs:  

CC:      . Deferred prosecution for Financial Card Theft and Financial Card Fraud. Agreed to 24 months supervised probation, 72 hours of community service, and to pay restitution and fees of $1244.50.

6105 Counseling : 6
         20040128 : For PFT failure.
         20040206: For violations of UCMJ Articles 86 and 92 for not going to remedial PT.
         20040209: For academic disenrollment of LAV Repair School (MOS 2147).
         20040701: For repeated failures to report to work and PT on time.
         20050831: For BN NJP.
         20060824: For commission of a serious offense.
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)
         Several documents from Onslow County, NC pertaining to the COSO.
         MOL Individual Award Report (Summary View) dated 06 Jan 2007.
         Statements from applicant's father, mother, and sister.
         Statement from CW3 James Williams, USA dated 12 Feb 2008.
         Statement from Glenda S. Burton dated 11 Feb 2008.
          Statement from Jessica Burton dated 08 Feb 2008.

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

Applicant’s Issues

 1. Medical benefits.
2. Unfair treatment by command.

Decision

 Date: 20080619            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 .

: ( ) . The Applicant contends he was treated unfairly by his command because he was not treated properly for his medical condition and his pay for being married (BAH w/dependents) did not start in a timely manner: despite knowing about these things his chain-of-command did not provide him with assistance. 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 eviden ce submitted by the Applicant. The Board reviewed the excerpts of the medical record the Applicant provided. These records show the Applicant experienced back pain in October 2005 and knee pain documented in October 2006. These records do not indicate the Applicant was denied medical treatment or treated improperly. Furthermore, they do not indicate the Applicant was not responsible for his actions. In cases of alleged command impropriety, the burden of proof is on the Applicant. The Applicant submitted several character references and a personal statement. These statements are insufficient to show the Applicant's Chain of Command in any way treated him unfairly during the administrative discharge process. Furthermore, the Board noted the Applicant was informed of his right to submit written matters to the separation authority; the Applicant chose not to do this. The Board found the Applicant's discharge was proper and equitable, and an upgrade to his discharge would be inappropriate.

The Board noted the Applicant applied for dependency of Rosanna Michelle Williams on 21 October 2005. This request was approved and reported on Unit Diary number 5594 on 28 October 2005. The only LES available to the Board is for the period 1-31 Oct 2006; this LES shows the Applicant was being paid BAH w/dependents during this time period. There is nothing in the record to indicate the Applicant's pay was improperly handled or that pay problems in any way mitigated his misconduct.
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 121 (larceny) .

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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