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USMC | DRB | 2008_Marine | MD0800977
Original file (MD0800977.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080311
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT DUE TO PATTERN OF MISCONDUCT
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     19971213 - 19971228              Active:
Period of Service Under Review:
 Date of Enlistment: 19971229               Period of enlistment : Years Months             Date of Discharge: 20001017
Length of Service : Yrs Mths 13 D ys      Education Level:         Age at Enlistment:       AFQT: 40
MOS: 0121        Highest Rank:                     Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle LOA

Periods of UA / CONF : 20000602-20000611 ( 10 days)

NJPs :     4
         19981229 : Art 86 (Unauthorized absence from rifle range) ,
         Art 123a (Uttered worthless checks to MWR (total $61.00) ,
         Art 107 (False official statement ) .
         Art 92 (Failed to obey an order).
         Awarded - CCU for 7 days . Susp - . Suspension vacated 19990518.

         19990521 : Art 86 , 2 specifications : 0545-0730, 19990517 ; 0630-0645, 19990518.
         Awarded - CCU for 7 days. Susp - . Suspension vacated 19991101.

         19991027 : Art 86 , 2 specifications : 3 days, 19990806 - 19990810 ; 3 days 19990813 – 19990816 .
         Art 91 (Willfully disrespect).
         Art 123a (Willfully without sufficient funds by writing a check to Pizza Hut).
          Awarded - . Susp - .
         20000627 : Art 86 , 7 days, 20000605 – 20000612 .
         Awarded - RESTR EPD . Susp - .

6105 Counseling :
         19981221 : For unauthorized absence, uttering 4 worthless checks, failure to follow a direct order, and making a false
official statement to your SNCOIC.
         19990517 : For failure to pass your Marine Corps Physical Fitness Test.
         199 9 0730 : For unauthorized abence from Section PT on 0600, 19990707, unauthorized absence from Bn PT on 0550,
19 990709 and unauthorized absence from Section PT on 0600, 19990714.
         19991101: No further information found in service record. [Extracted from Commanding Officer’s letter dated
20000810.]





Types of Documents Submitted/reviewed

 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) Two business cards for employees of Tidewater Tech

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

Applicant’s Issues

 1. Applicant is requesting an upgrade so he can get the MGI bill benefits to continue his education .
2. Post service conduct.

Decision


 Date: 20 08 0702             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (DUE TO PATTERN OF MISCONDUCT) .
Discussion

 : The Applicant is requesting an upgrade so he can receive his MGI Bill benefits and go to school to better his career opportunities. 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 .

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. The Applicant’s service record was marred by 4 non-judicial punishments (NJPs) and 4 retention warning counseling’s for numerous violations of the Uniform Code of Military Justice to include Articles 86, 91, 92, 107, and 123a. While these violations are deemed serious in nature and could have resulted in a punitive discharge, if adjudicated by a court-martial, the command opted to pursue an administrative separation instead for a well established pattern of misconduct.

Issue 2 (Equity): RELIEF NOT WARRANTED. 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. 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 statement from the American Legion and copies of two business cards. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service , evidence of a drug free lifestyle, and certification of non-involvement with civil authorities. The Board determined the post service documentation and statements provided by the Applicant and did not mitigate the in service misconduct that resulted in the characterization of discharge. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. The Board determined an upgrade was not warranted.

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, t he Board determined the discharge was proper and equitable.

Pertinent Regulation/Law
A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
31 Jan uary 19 97 until 31 Aug ust 20 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, Articles 86, 92, 107 and 123a.
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 other medical related reasons. ” 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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