Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0801246
Original file (MD0801246.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080516
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)     20010105 - 20010729              Active:

Period of Service Under Review:
 Date of Enlistment: 20010730               Period of E nlistment : Years Months             Date of Discharge: 20040827
Length of Service : Yrs Mths 03 D ys      Education Level:         Age at Enlistment:       AFQT: 99
MOS: 1316        Highest Rank:                     Fitness R eports:
Proficiency/Conduct M arks (# of occasions):      3.8/3.8 (NFIR)
Awards and Decorations ( per DD 214): Rifle : , Pistol : , , .

Periods of UA : 20040402-20040419 (18), 20040322-20040329 (8) .

NJPs :     2
         20030508:        Art icle 86 (F ailure to go to appointed place of duty).
                  Awarded - RESTR EPD (14/14), FOP ($248 for 1 month). Susp - FOP and RESTR for 6 months.
         20040304:        Art icle 86 (F ailure to go to appointed place of duty).
                  Awarded - RIR (E1), FOP ($596 for 2 months), RESTR EPD (45/45). Susp - NONE.

S CMs :    2
         20030328:        Art icle 120 ( Carnal knowledge)
                  Article 125 (S odomy)
                  Article 13 4 (I ndecent liberties with a child) .
                  Sentence - RIR (E1), RESTR (60 Days), FOP ($709 for 1 month).
         20040607: Art icle 86 ( A bsenting self from appointed place of duty) , 6 specifications .
                  Sentence - FOP ($796 for 1 month), RESTR (60 Days).

6105 Counseling : 3
         20030508: For recent non-judicial punishment for violation of UCMJ Article 86 ( U nauthorized absence).
 20040310: For two non-judicial punishments and a Summary Court Martial.
20040624: For recent Summary Court Martial for violations of UCMJ Article 86 and notification for processing for involuntary discharge due to a pattern of misconduct.

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)

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

Applicant’s Issues

 1. Educational opportunities.
2. Mitigating factors.
3. Record of service.

Decision

 Date: 20 08 0807             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 , 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 eviden ce submitted by the Applicant. The Applicant's record was marred by three retention warnings, two non-judicial punishments (NJP) , and two summary courts-martial for violations of the Uniform Code of Military Justice (UCMJ) . The Applicant contends the requirement to care for his mother prevented him from being able to serve out restriction awarded at NJP for violation of Article 86 , of 04 March 2004. The record of evidence shows the Applicant appealed the punishment awarded at this NJP, stating the requirement to care for his mother. The appeal was denied based on the lack of evidence of his mother’s disability and the fact the mother was not claimed as a dependent. The Board determined any assistance he may have provided to his mother was insufficient to mitigate his misconduct leading to his 07 June 2004 s ummary court-m artial for violation of Article 86. Furthermore, the claim of a requirement to care for his mother in 2004 has no bearing on the Applicant’s conviction by s ummary court-m artial for violation of Articles 120, 125, and 134 on 28 Mar ch 2003 and NJP for violation of Article 86 on 05 May 20 03. The Board determined an upgrade to the Applicant's discharge would be inappropriate.

: ( ) . The Applicant contends his discharge was inequitable considering he completed the majority of his Enlistment contract . A discharge of “U nder O ther T han H onorable C onditions ” is warranted when significant aspects of a service member's record outweigh the positive. As stated above, the Applicant's record was marred by three retention warnings, two non-judicial punishments, and two summary courts-martial for violations of the UCMJ . The Applicant was charged and found guilty for violations of Articles 86, 120, 125, and 134. Violations of Articles 120, 125 and 134 are considered serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge. T he 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. 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 120, 125 , and 134 .

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

Similar Decisions

  • USMC | DRB | 2008_Marine | MD0801152

    Original file (MD0801152.rtf) Auto-classification: Denied

    There was no evidence in the record, nor was any submitted by the Applicant, documenting he was not responsible for his actions or that the misconduct should be excused based on youth and immaturity. Again, 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. ” Additional Reviews :...

  • USMC | DRB | 2008_Marine | MD0801244

    Original file (MD0801244.rtf) Auto-classification: Denied

    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...

  • USMC | DRB | 2008_Marine | MD0801241

    Original file (MD0801241.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance...

  • USMC | DRB | 2007_Marine | MD0701169

    Original file (MD0701169.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT - PATTERN OF 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. ” 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. Additionally, the Board...

  • USMC | DRB | 2008_Marine | MD0801206

    Original file (MD0801206.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP)19981028 - 19981231Active: Period of Service Under Review: Date of Enlistment: 19990101Period of Enlistment: Years MonthsDate of Discharge:20021231Length of Service: Yrs Mths00 DysEducation Level: Age at Enlistment:AFQT: NFIRMOS: 6672Highest Rank: Fitness Reports: Proficiency/Conduct Marks (# of occasions):4.1/3.6 (10)Awards and Decorations (per DD 214): Rifle:...

  • USMC | DRB | 2008_Marine | MD0801518

    Original file (MD0801518.rtf) Auto-classification: Denied

    As stated in the above paragraph, when the quality of a service member has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions. The Applicant received a “General (Under Honorable Conditions)”. The Board determined an upgrade or change would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process...

  • USMC | DRB | 2008_Marine | MD0801068

    Original file (MD0801068.rtf) Auto-classification: Denied

    From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Record, Discharge Process and evidence submitted by the Applicant, the Board found ADMINISTRATIVE CORRECTIONS TO THE APPLICANT’S DD 214 The NDRB did note administrative errors on the original DD Form 214. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of...

  • USMC | DRB | 2008_Marine | MD0800957

    Original file (MD0800957.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The Doctor informed the Applicant the administrative separation overrides all other issues including a medical board and medical hold. Again, an upgrade to the Applicant's discharge is 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...

  • NAVY | DRB | 2007_Navy | ND0700284

    Original file (ND0700284.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service. Recommendation on Separation: - Recommendation on Characterization: Commanding Officer Recommendation (date): (19930219) Separation Authority (date): BUPERS (19930310)Reason for discharge directed: - Characterization directed: Date Applicant Discharged: 19930324 Types of Documents Submitted by Applicant and...

  • USMC | DRB | 2008_Marine | MD0800820

    Original file (MD0800820.rtf) Auto-classification: Denied

    Vacated 20010307.SCMs: 1 20010518: Article 92 (Failure to obey order), 3specifications, Article 95 (Fleeing apprehension), Article 134 (Breaking restriction).Sentence - RIR (E2), FOP ($300 for 1 month), Confinement (29 days). 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...