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USMC | DRB | 2008_Marine | MD0801732
Original file (MD0801732.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080812
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to: or
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    19950827 - 19960611              Active:

Period of Service Under Review:
 Date of Enlistment: 19960612      Period of Enlistment : Years Months     Date of Discharge: 19980320
Length of Service: Year Months 09 D ays Education Level: Age at Enlistment:
AFQT: 35 MOS: 1341        Highest Rank:   Fitness Reports:
Proficiency/Conduct Marks (# of occasions): ( ) / ( )
Awards and Decorations (per DD 214): Rifle

Periods of UA/CONF: SCM: SPCM: CC:

NJP:
- 19970214 : Article 121 (Larceny).
 Awarded: Suspended: (Suspension vacated 199700506)
- 19970506 : Article 108 (Damage military property through neglect)
Article 121 (Larceny)
Awarded: Suspended:

- 19971118 : Article 86 (Fail to go at the time prescribed to appointed place of duty)
Article 107 (False official statement)
Awarded: Suspended:

6105 Counseling:
- 19961114 : For inability to exercise good judgment and maintain conduct that supports good order and discipline by
kicking a door in the BEQ for the purpose of gaining entry. Conduct of this nature is unacceptable and
will not be tolerated.

- 19970522 : For frequent involvement with military authorities demonstrating a pattern of misconduct as evidenced by
receiving two NJP’s within a 3 month period.
Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT ”

The NDRB will recommend to the Commandant of the Marine Corps (MMSB-13) 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 Representation:              From Member of Congress:

Other Documentation (Describe):



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

Applicant’s Issues

 1. Reenlistment opportunities.
2. Isolated incident of misconduct.

Decision


 Date: 2008 1121             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 this Issue.

 : ( ) . The Applicant contends the narrative reason for separation is incorrect. He claims he had only an isolated incident of misconduct, not a “Pattern of Misconduct” as stated on his DD-214. 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 two retention warnings and three NJPs for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, failure to go to appointed place of duty); Article 107 (False official statement); Article 108 (Damage to military property); and Article 121 (Larceny). For the edification of the Applicant, a Marine may be separated when there is a pattern of two or more NJPs within one enlistment. The record of evidence clearly shows the Applicant’s service record meets the requirement for a pattern of misconduct. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate. Additionally, a change to the Applicant’s narrative reason for separation would be inappropriate.

The NDRB did note administrative errors on the Applicant’s DD-214. Specifically, blocks 24 and 28 were not filled out according to regulations in effect at the time of discharge. The NDRB will recommended to the Commandant of the Marine Corps (MMSB-13) to correct the errors noted. The NDRB would like the Applicant to understand these corrections are to amend administrative errors, not in response to the Applicant’s petition for discharge upgrade.

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 P1900.16E), effective 31 January 1997 until 31 August 2001.

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 107, 108, and 121.

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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