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USMC | DRB | 2008_Marine | MD0801241
Original file (MD0801241.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080515
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)     20010228 - 20010321              Active:

Period of Service Under Review:
 Date of Enlistment: 20010322               Period of E nlistment : Years Months             Date of Discharge: 20050209
Length of Service : Yrs Mths 18 D ys      Education Level:         Age at Enlistment:       AFQT: 39
MOS: 0151        Highest Rank:                     Fitness R eports:
Proficiency/Conduct M arks (# of occasions):      NFIR
Awards and Decorations ( per DD 214): Rifle Pistol
Periods of UA / CONF :

NJPs :     4
         20020 718 : Art icle 92 ( F ailure to obey lawful order) , 2 specifications .
         Awarded - RESTR EPD (14/14). Susp - NONE.
         20040503: Art icle 112a ( W rongful use of marijuana).
         Awarded - RIR (E2), FOP ($668 for 2 months), RESTR EPD (45/45). Susp - FOP for 6 months.
Vacated 20040722.
         20040722: Art icle 92 ( F ailure to obey lawful order).
         Awarded - FOP ($668 for 2 months), RESTR (60). Susp - NONE.
20041018: Art icle 91 ( D isrespect to an NCO and willfully disobeying an NCO) , 3 specifications,
 Art icle 134 ( D runk and disorderly and impersonating an NCO) , 2 specifications.
Awarded - RIR (E1), FOP ($596 for 2 months), RESTR EPD (45/45). Susp - RIR and FOP for 6 months.

6105 Counseling : 4
20021001: For violations of the U niform C ode of M ilitary J ustice (UCMJ), Article 86 ( F ailure to go to appointed place of duty) and Article 92 ( F ailure to obey lawful order) by failing to report to the rifle range.
         20030824: For using a government phone to conduct personal business.
20040826: For recent NJPs (violations of UCMJ , Articles 92 and 112a) and notification of involuntary discharge processing for misconduct (pattern of misconduct and drug abuse).

         20041109: For recent NJP (violations of UCMJ Articles 91 and 134).      








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)
         - Character reference from J. S. , dated 27 M arch 2008.


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

Applicant’s Issues

 1. Medical issues at time of discharge.
2. Post service record.

Decision


 Date: 20 08 07 11             Locat ion: Washington D.C .         R epresentation : NC Veteran Service Organization

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall Misconduct .
Discussion

 : The Applicant implies he was improperly separated in that he was not provided a medical board or allowed a full recovery prior to being discharged. The issue is without merit. Service regulations require misconduct separations, notwithstanding an individuals medical issues, when an Other Than Honorable or punitive discharge are authorized. The Applicant is directed to the Addendum , specifically the paragraph concerning 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 record of service was marred by four retention warnings and four non-judicial punishments for violations of the Uniform Code of Military Justice, Articles : 86 (Failure to go to appointed place of duty); 91 (Disrespect to and failing to obey an NCO); 92 (Failure to obey lawful order); 112a (Wrongful use of marijuana); and 134 (Drunk and disorderly and impersonating an NCO). Violations of Articles 91, 92, 112a, and 134 are considered serious offenses, punishable by a bad conduct or dishonorable discharge and imprisonment if awarded at a Special or General Court Martial. The command did not pursue a court martial but instead opted for an administrative discharge based on drug use. Furthermore, in accordance with Marine Corps policy, discharge processing is mandatory for violations of Article 112a.

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. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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 during Board reviews. The Applicant provided a personal statement and a character reference as evidence of post-service accomplishments. 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, documentation of educational pursuits, evidence of a drug free existence, and certification of non-involvement with civil authorities. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post service conduct mitigates the reason for the characterization of discharge. The Board determined an upgrade would be inappropriate.

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT .

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 : 91 ( D isrespect to and failing to obey an NCO), 92 ( F ailure to obey lawful order), 112a ( W rongful use of marijuana), and 134 ( D runk and disorderly and impersonating an NCO) .


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 or is referred to a court-martial fo r 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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