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USMC | DRB | 2008_Marine | MD0801859
Original file (MD0801859.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080909
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: USA (DEP)       UNKNOWN   Active:  
         USMCR (DEP)      19960122 - 19960227

Period of Service Under Review:
Date of Enlistment: 19960228     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19991101      H ighest Rank:
Length of Service : Y ea rs M on ths 04 D a ys
Education Level:        AFQT: 51
MOS: 0411
Proficiency/Conduct M arks (# of occasions): ( 15 ) / ( 15 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM

Periods of UA / CONF : / CONF: (28 days)

SPCM: CC:

NJP:
- 19970617 : Article 92 (Fail to obey a lawful order by wrongfully drinking under age)
Article 111 (Drunk driving)
 Awarded: Suspended:

- 19980604 : Article 90 (Willfully disobey a lawful order)
Article 117 (Wrongfully use reproachful words)
Awarded: Suspended:

- 19980609 : Article 134 (Break restriction)
Awarded: Suspended:

- 19980804 : Article 86 (UA ), 0700-1300 19980722
Awarded: Suspended:

- 19990826 : Article 86 (UA ), 0800 19990810
Article 92 ( Failure to obey an order or regulation), v iolated MCBJO 1050.3 by failing to sign in for Liberty
r isk on three occasion, 3 specifications
Awarded : Susp ended:





SCM:

- 19981221 : Art icle 128 (Unlawfully strike a PFC on the head with his fist)
Sentence :

Retention Warning Counseling :

- 19990412 : For non - judicial punishment on 19970617 for driving impaired, and NJP on 19980604 disobeye d a lawful
order and using wrongful and reproachful words and 19980609 broke restriction and on 19980804 was
absent without authority. On 19981221, summary court-martial for assaulting another Marine.

Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:      Service / 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 Congress member :

Other Documentation :

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 90, Article 92, Article 111, and Article 128 .



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

Applicant’s Issues

 1. Record of service .
2. Mitigating circumstances.
3. Post-service conduct.

Decision


 Date: 20 0 9 0114            Location: Washington D.C .         R epresentation :

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

 : ( ) . The Applicant contends he is entitled to a discharge upgrade due to his record of service which ended when he was discharged within three months of his end of contract. 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 one retention warning, five NJPS, and 1 SCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 90 (Willfully disobeyed a lawful order from a superior commissioned officer); Article 92 (Disobeying a lawful order); Article 111 (Drunk driving); Article 117 (Provoking speech or gestures); Article 128 (Assault consummated by battery); and Article 134 (Breaking restriction). Violation of Article 90, Article 92, Article 111, or Article 128 is considered a serious offense, punishable by punitive discharge and confinement if adjudicated and awarded by a special or general court-martial. The command did not pursue a punitive discharge but instead opted for an administrative discharge .

The record of evidence shows the Applicant was transferred to his final command in March 1999. It was discovered the Applicant arrived at this unit with four NJP’s and one SCM. The Applicant was immediately counseled by his battalion commander that any further misconduct would be grounds for administrative separation. The Applicant acknowledged this counseling on 12 April 1999. The Applicant was subsequently punished by NJP on 26 August 1999. On 27 August 1999 the battalion commander notified the Applicant that administrative separation processing was being initiated. The NDRB determined the Applicant’s sustained pattern of misconduct justifies the “Under Other Than Honorable” conditions characterization of service. Furthermore, the fact the Applicant was discharged with only three months left on active duty has no bearing on the Applicant’s characterization. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to circumstances which mitigated his misconduct. Specifically, the Applicant contends his immaturity and alcohol use contributed to his misconduct. While the Applicant may feel his immaturity and alcohol use where the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant wasn’t responsible for his action or held account for his misconduct due to immaturity or alcohol use. The NDRB determined an upgrade founded upon these mitigating circumstances would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to 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 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. 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. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character

witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Applicant provided character references, evidence of community service, and statements of stable employment and family life. While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct did not mitigate the misconduct which precipitated the discharge. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided 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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