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USMC | DRB | 2008_Marine | MD0801453
Original file (MD0801453.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080625
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) 20040810 - 20040902                Active:

Period of Service Under Review:
Date of Enlistment: 20040903      Period of E nlistment : Years Months     Date of Discharge: 20060823
Length of Service : Y ea rs M on ths 21 D a ys         Education Level: Age at Enlistment: AFQT: 39 MOS: 0311 Highest Rank:          Fitness R eports:
Proficiency/Conduct M arks (# of occasions): ( ) / ( )
 Awards and Decorations ( per DD 214): GWOTSM NDSM LOA (2) Rifle

NJPs :
20050304 : Art icle 86 (Absent without authority ) , 1300 20050212 to 1125 20050302 (20 days)
Awarded : . Susp ended:

20060510 : Article 86 (Absent without authority) , 2 specifications:
                  - Specification 1: 0730-0840, 20060301
                   - Specification 2: 1530-1745, 20060324
 Article 134 (Operat ing a vehicle in excess of 100 mph on 20060226 )
Awarded : . Susp ended:

6105 Counseling :
Undated : For being assigned to MRP platoon aboard School of Infantry (East).
20050304 : For violation of Article 86 from 1300, 20050212 to 1125, 20050302.

20060515 : For violation of Article 134 - Reckless endangerment in that you were stopped by an Off-D uty HPD
 Officer for driving approximately 90 mph in a 45 mph zone on the Pali Highway on or about 2100
20060513 .

20060530 : For violation of Articles 91 and 92 in regards to being informall y counseled by a Sgt of Marines
 concerning your walking and talking on a cell phone while in uniform which is a direct violation of MCO
P1020.34G and the disrespect you showed a Sgt by continuing to talk on the cell phone while he was
 trying to counsel you.

20060719 : For Physical Condition Not a Disability , based on his organic etiology of his dyspnea , a vocal chord
dysfunction.

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 :     
        
Related to Post-Service Period (cont) :

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) :
-        Mother’s Outpatient Registration Record
-        Record of Service Printout
-        Police Record Check

Pertinent Regulation/Law

 A. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

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 .



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

Applicant’s Issues

 1. Medical condition impaired ability to serve.
2. Illness of mother caused misconduct.
3 . Record of service.
4. Post-service conduct.

Decision

 Date: 20 08 0925             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall CONDITION NOT A DISABILITY .
Discussion

 : ( ) . The Applicant contends his discharge should be upgraded since his medical condition impaired his ability to serve. 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 is m arred by 5 retention warnings and 2 NJPs for violation s of the U niform C ode of M ilitary J ustice (UCMJ) , Article 86 and Article 134 . The Applicant presents no military medical diagnosis stating h is vocal chord dysfunction was the cause of his misconduct or a medical determination that the issue with his vocal chords mitigates his misconduct. The Board rejects the Applicant’s contention his vocal chord dysfunction mitigates his misconduct and ability to uphold the standards established for Marines . The Board determined an upgrade would be inappropriate.

: ( ) . The Applicant contends his period of unauthorized absence is justified by his mother’s illness and his need to car e for her. To support this contention, he submitted a copy of his mother’s outpatient registration for an unspecified medical treatment dated 11 Feb ruary 2006. The Board rejects the Applicant’s contention his presence was required to care for his mother following an u nspecified outpatient treatment. Furthermore, the Applicant clearly used the wrong approach to obtain time off regardless of the circumstance. The Applicant could have used emergency leave in the event of a bona fide medical emergency verified by the Red Cross, annual leave in other cases , or requested a humanitarian transfer if longer care was needed . The Applicant did not present any documentation indicating he notified his chain of command of the situation surrounding his mother or any needed care she may have required. The Board determined an upgrade would be inappropriate.
: ( ) . The Applicant contends he would have received an honorable discharge had he been allowed to complete his contracted service. For the edification of the Applicant, w hen the quality of a member’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)” characterization of service is appropriate if the Marine’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the Marine ’s military record. The Board determined the 5 retention warning counselings and 2 non-judicial punishments are significant negative aspects of the member’s service record and outweigh the positive aspects. As such, the characterization was appropriate considering his overall service record. The Board determined an upgrade would be inappropriate.
Issue 4 : ( ) . The Applicant contends his discharge should be upgraded based on his post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides a 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 during Board reviews . Supporting documentation that could have been submitted for consideration by the Board include, but is not limited to: evidence of a verifiable long-term employment record ; evidence of a drug-free existence; documentation of educational pursuits; certification of non-involvement with civil authorities ; evidence of continuing

volunteer or church service, and documentation of financial stability or evidence of good standing with financial institutions or credit card companies . 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.

As evidence of his good conduct the Applicant submitted reference letters from his supervisor and employer, a former JROTC instructor, letters fellow Marines the Applicant serv ed with while on active duty , and two criminal background checks f r o m Miramar, Florida and Broward County. While this does demonstrate good conduct in the two years since being discharged, the Board determined it is not sufficient in scope or length to warrant upgrading his 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


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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