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USMC | DRB | 2008_Marine | MD0801413

Original file (MD0801413.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080523

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to: or general (under honorable conditions)
Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 19961224 - 19971013                Active:

Period of Service Under Review:
Date of Enlistment: 19971014      Period of E nlistment : Years Months      Date of Discharge: 20011003
Length of Service : Yrs M on ths 20 D a ys Education Level:         Age at Enlistment:       AFQT: 51
MOS: 2111         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
Awards and Decorations ( per DD 214): Rifle Pistol Pistol

Periods of UA / CONF :

NJPs :
19981006 : Art icle 92 (Failure to obey a lawful order) ,
Ar ticle 113 (Dereliction of duty),
Article 134 (Sleeping on post).
Awarded : . Susp ended: . Susp ension vacated 19990112.

19990302 : Art icle 92 ( Failure to obey a lawful order), 2 specifications :
         - Specification 1: Violate CG III MEF Memorandum 1-98 by drinking under the legal age of 21 ,
         - Specification 2: Violate MCBJO 5800.6A by being in a restricted area after curfew.
Article 134 (Publicly intoxicated).
Awarded : . Susp ended: .

20010301 : Article 86 (Unauthorized absence ), from appointed place of duty ( 0500 ) 20010205 to (0600) 20010207,
Article 91 (Failed to obey a lawful order) ,
Article 92 (Failed to obey Base Order on Leave and Liberty) .
Awarded : . Susp ended: .

20010827 : Article 112a ( Drug use), illegally use d cocaine.
Awarded : . Susp ended: .

S CMs :

SPCMs:

CC:

Period of Service Under Review (con’t) :

6105 Counseling :
20010927 : For my illegal drug involvement, specifically my cocaine usage identified through urinalysis confirmed by
NAVDRUGLAB San Diego CA 137113Z Aug 01.

20010920 : For wrongfully using a controlled substance.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 03 11 20 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
Block 29, Dates of Time Lost During This Period, should read: “(3) 20010205 – 20010207 ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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) :

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 1 September 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 of the UCMJ, Article 91, 92, 112a, 113, and 134 .

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

Applicant’s Issues

1. E ducational and employment benefits .
2. O verall in - service conduct .
3. P rocess for review .

Decision

Date: 20 08 0918 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 .

: ( ) . T he Applicant contends his length of time in the Marine Corps warrants a higher characterization of service and mitigates his misconduct. 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 conduct during the current period of service, which forms the primary basis for determining the character of his service , was marred by the award of four non - judicial punishments for violations of the U niform C ode of M ilitary J ustice (UCMJ), Articles 86, 91, 92, 112a, 113, and 134. Violations of UCMJ Articles 91, 92, 112a, and 113 a re considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Court Martial. The command did not pursue a punitive discharge but opted for an administrative discharge instead.

The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. When the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel , it is appropriate to characterize that service under “H onorable ” conditions. A “General (Under Honorable Conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. An “U nder O ther T han H onorable ” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a Marine. The Board determined the Applicant consistently violated the UCMJ and Naval Service values of honor, courage, and commitment and the characterization received was appropriate for his offenses and a n upgrade to “General (Under Honorable Conditions) or to “H onorable ” would be inappropriate.

Issue 3. The Applicant requests advice concerning the process by which to obtain a personal discharge review hearing from the NDRB. The Applicant can use the DD 293 form to request a personal hearing. This is the exact same form the Applicant used in requesting a record review. On the form the Applicant will provided the required information and check Block 9 requesting to appear at a hearing at no expense to the Government before the NDRB in Washington, D.C. Once the signed, completed application is received by the NDRB a representative will contact the Applicant to schedule a personal hearing. The NDRB has enclosed a blank DD 293 form for the Applicant’s use.

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

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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USMC | DRB | 2008_Marine | MD0801413

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