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USMC | DRB | 2008_Marine | MD0801201
Original file (MD0801201.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080507
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    19871229 - 19880802     Active: 

Period of Service Under Review:
 Date of Enlistment: 19880803      Age at Enlistment:
Period of Enlistment : Years Months
Date of Discharge: 19930507       H ighest Rank:
Length of Service: Year(s) Month(s) 05 D ay(s)
 Education Level:         AFQT: 81
MOS: 2512
Proficiency/Conduct Marks (# of occasions): (14) / (14)       Fitness Reports:

Awards and Decorations (per DD 214):     NAM CAR NUC w/2* MUC w/1* NDSM SASM w/1* SSDR Rifle MM LOA COA COC AFEM
Periods of UA/CONF:

NJP:
- 19901002:      Article 91 (Disrespectful in language)
                  Awarded: CCU 7 DAYS Suspended: CCU
- 19920103:      Article 91 (Willfully disobeyed an order)
         Article 91 (Disrespectful in language)
                  Awarded: Suspended:

- 19921130:      Article 90 (Willfully disobeyed an order)
         Article 91 (Willfully disobeyed an order)
         Article 117 (Wrongfully used provoking words)
         Article 128 (Assault)
         Article 134 (Drunk and disorderly)
                  Awarded: Suspended:
SCM:

SPCM:

CC:

Retention Warning Counseling:
- 19900504 :      For continued failure to be at section on time
- 19900604:      For not being at his appointed place of duty, barracks 574 working party on 19910521
- 1990109:       For violation of UCMJ Article 91, disrespect to an NCO
- 19920106:      For continued misconduct and poor performance

NDRB Documentary Review Conducted (date):        20000622
NDRB Documentary Review Docket Number:   MD00-00091
NDRB Documentary Review Findings:                 NO CHANGE WARRANTED
Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:         Service/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 Representation:     From Congress member:

Other Documentation:

Pertinent Regulation/Law

A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 June 1989 until 17 August 1995.
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 violations of the UCMJ: Article 90 (Willfully disobeyed superior commissioned officer), Article 91 (Insubordinate conduct towards a non-commissioned officer), Article 117 (Provoking speeches or gestures), Article 128 (Assault), and Article 134 (Drunk and disorderly).


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

Applicant’s Issues

 1. Record of service.
2. Post-service conduct.

Decision


 Date: 20090513   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 contends the positive aspects of his service outweigh the negative aspects, and his overall proficiency and conduct marks exceed the minimum marks required for an Honorable discharge. 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 record of service was marred by four retention warnings and three NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 90 (Willfully disobeyed superior commissioned officer), Article 91 (Insubordinate conduct towards a non-commissioned officer), Article 117 (Provoking speeches or gestures), Article 128 (Assault), and Article 134 (Drunk and disorderly). Although these are considered serious offenses, the Board concluded each offense the Applicant committed was minor in nature based on witness statements regarding each incident. These witness statements contradicted the charges, but were not available at the time of the last NJP. Nonetheless, the Board determined the Applicant is responsible for his actions and his actions were not in keeping with Marine Corps values. For the edification of the Applicant, if a member met his expiration of active service, his average of proficiency and conduct marks would be used to determine the characterization of service. For members, like the Applicant, who are involuntarily separated under chapter 6 of the Marine Corps Separation and Retirement Manual an Honorable characterization of service would be appropriate only if the Marine’s service is otherwise so meritorious that any other characterization would be clearly inappropriate. Based on the Applicant’s record of service the Board determined his discharge was appropriate and an upgrade would be inappropriate.

 Issue 2: ( ) . The Applicant contends his post-service efforts have been exemplary. The NDRB reviewed all of the documentation presented by the Applicant, which included: marriage and children’s birth certificates; certification of non-involvement with civil authorities; evidence of financial stability (owned his home since 2002) and letters of good standing from his bank; completion of an Associate’s of Science degree from (redacted) Community College and a Bachelor of Science degree in Civil Engineering from (redacted) University, and official transcripts from the (redacted) Institute of Technology verifying his pursuit of a Master’s degree; steady employment records with job reviews, certificates as a Licensed Professional Engineer and a certified (redacted) Manager in the state of (redacted) ; and positive character references. The Board applauds the Applicant for successfully turning his life around and his continued drive to make himself a positive member in his community. Although nothing can mitigate the misconduct by the Applicant, the Board felt his post-service efforts were commendable to be recognized. The NDRB voted 4-1 to upgrade the characterization of the discharge to Honorable. However, by unanimous vote, the narrative reason for the discharge, “MISCONDUCT (PATTERN OF MISCONDUCT)” shall remain as issued.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the NDRB found the discharge was proper and equitable at the time of discharge; however, an upgrade was warranted based on post-service conduct.

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 or is referred to a court-martial 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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