Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0801942
Original file (MD0801942.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080923
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)       20010713 - 20011104     Active:  

Period of Service Under Review:
Date of Enlistment: 20011105     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040617      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 34
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( 7 ) / ( 7 )          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 20020917 :       Article 86 (UA - morning formation )
         Article 91 (Disrespectful to 1 st Lt by falling asleep while being counseled)
         Article 92 (Failure to obey an order or regulation - 2 specifications )
         Spec 1: Violate MCO P1020.34F by wearing an earring
          Spec 2: Violate R.O. 1050 by entering Tijuana without proper authority
         Article 134 (Debt, dishonorably failing to pay)
                  Awarded: RIR FOP CCU 30 DAYS Suspended:
                  [Missing Back page of NJP paperwork, thus NFIR on additional awarded/suspension of punishment]

- 20031211 :      Article 86 ( Unauthorized absence: 0615-1005 on 20031031 )
                   Awarded : RIR RESTR Susp ended: NFIR
                           [Missing Back page of NJP paperwork, thus NFIR on additional awarded/suspension of punishment]
SCM:

- 20030613 :       Art icle 86 (Going from appointed place of watch)
         Article 91 (Disobeying an order)
         Article 92 (Dereliction of duty)
                   Sentence :

SPCM:

CC:



Retention Warning Counseling :

- 20020506 :       For failure to go to your appointed place of duty. On 20020420 you were late for your scheduled fire- watch at 1400 and you failed to report for your fire-watch at 0200. Accountability is paramount to the Marine Corps mission; you may not come and go as you please. Rules and regulations are made for a reason, to ensure the good order and discipline. This type of behavior is unacceptable and will not be tolerated.
- 20020910 :       For having on several occasions been late to formations and musters. You have been informally counseled on several occasions and remediation efforts have not been effective. You have further violated the UCMJ by disobeying orders by wearing earrings, entering the country of Mexico without proper permission (Art 92) and sleeping in your workspace vice accomplishing your sections mission. Additionally your personal finances are in disarray. You owe another Marine money for phone charges that you accumulated on their account, and you damaged the car speakers of yet another Marine. Your performance is not indicative of the traits normally associated with a Marine. Further violations and disruptive behavior will not be tolerated.
- 20030305 :       For negligently discharging your weapon without competent authority nor in self-defense and exercising poor judgment in discharging your weapon. While assigned to the guard force, you were directly responsible for negligently discharging your weapon. As a member of the guard force, one of your primary responsibilities is to be thoroughly familiar with rules of engagement. Prior to assuming post, you received a class of rules of engagement as well as how to stand your post. Your failure to apply the rules of engagement guidelines or seek assistance from the Sergeant of the Guard had a direct impact on you negligently discharging your weapon.
- 20040112 :       For my multiple violations of Article 134-102 of the Uniform Code of Military Justice. I am being counseled for failure to comply with the rules, regulations, and restrictions put on me as a result of my recent Group nonjudicial punishment. Knowingly during the time of these violations I will continue to serve the remaining portion of my restriction.

Administrative Corrections to the Applicant’s DD 214

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

         “ 02 Years 07 Months 13 Days ”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “National Defense Service Medal, Sea Service Deployment Ribbon, Global War on Terrorism Expeditionary Medal (CSSB-16), Presidential Unit Citation (CSSG-15), Rifle Marksman Badge, and no more.

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 / 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 :



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

Applicant’s Issues

 1. Applicant feels his discharge was too harsh for his misconduct of record.
2. Applicant feels his discharge does not accurately reflect his character of service due to mitigating circumstances.
3. Applicant feels his post-service conduct is worthy of consideration.

Decision

 Date: 20 0 9 1022            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT .
Discussion
The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings, nonjudicial punishments (NJP’s) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence), Article 91 (Disrespectful to a Commissioned Officer by falling asleep while being counseled), Article 92 (Failure to obey an order or regulation: 2 specifications – wearing an earring and entering Tijuana, Mexico without proper authority ) and Article 134 (Debt, dishonorably failing to pay) ; and a Summary Court-Martial (SCM) for of the UCMJ: Article 86 (Unauthorized absence), Article 91 (Disobeying an order) and Article 92 (Failure to obey an order or regulation) . Based on the offense(s) committed by the Applicant, command administratively processed for separation . When notified for Administrative Separation Processing, the Applicant elected rights to consult with qualified counsel (1 st Lt N_) , submit a written statement for consideration by the separating authority , and to request an a dministrative b oard , which he later waived per a letter dated 12 March 2004 .

Issue 1 : ( Decisional) ( ) . The Applicant contends his discharge was too harsh for his misconduct of record. Although the Applicant may feel his offenses were minor in nature, certain offenses warrant separation from the naval service in order to maintain good order and discipline. The NDRB recognizes that serving in the Marine Corps is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most Marines serve honorably and therefore earn honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that Marines receive no greater of lesser characteriza tion than is due. Based on the Applicant’s record, the NDRB determined his service was equitably characterized as being performed under other than honorable con ditions. Relief denied .

Issue 2: (Decisional) ( ) . The Applicant contends his discharge does not accurately reflect his character of service due to mitigating circumstances (in-service medical and mental health problems). Although the applicant feels that his medical and mental health issues contributed to his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions. The only reference s to mental health issues with in the Applicant’s medical record are dated 10 December 2003, one day prior to an NJP, to evaluate his mental status to determine if another work assignment would be likely to alleviate the following symptoms (feeling tense, stressed, uptight, borderline depression with anxiety) and poor performance on the job. The NDRB did note that the Applicant’s brother had died in November 2003 and determined that the loss of his brother and his impending NJP may have contributed to his mental health issues at the time of t his evaluation, but the NDRB did not believe this loss mitigated the consider adverse behavior the Applicant displayed over nearly a 24-month period. Relief denied.

Issue 3: ( Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration. The Applicant provided only service-related documentation that was available and more than likely considered at the time of discharge. The Applicant provided very little verifiable post-service documentation in order to support his efforts , despite being advised as to what to provide the Board in earlier correspondence . The Applicant is directed to the Post-Service Conduct paragraph on the addendum for a list of items that would be beneficial for the NDRB to review. In addition, maintain your contact with the American Legion for assistance if you choose to appear before a Personal Appearance Hearing. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Addit ional Reviews, and Post-Service Conduct .


Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective
1 September 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 .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at or completion of higher education (official transcripts); 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 | 2013_Marine | MD1301371

    Original file (MD1301371.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant is not eligible for further reviews by the NDRB. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...

  • USMC | DRB | 2008_Marine | MD0801352

    Original file (MD0801352.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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 NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • NAVY | DRB | 2001_Navy | ND01-00745

    Original file (ND01-00745.rtf) Auto-classification: Denied

    No indication of appeal in the record.880422: Retention Warning from [USS GOLDSBOROUGH (DDG-20)]: Advised of deficiency (CO's NJP of 880406 for violation of UCMJ, Article 86: Unauthorized absence for a period of 3 hours and thirty five minutes, date of offense 880405, violation of UCMJ, Article 92: Your failure to obey a lawful regulation issued by COMNAVBASE SAN DIEGO in regards to the curfew imposed it Tijuana, Mexico, date of offense 880404; violation of UCMJ, Article 107: You did with...

  • USMC | DRB | 2006_Marine | MD0600533

    Original file (MD0600533.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. It is her continual light duty chits, attempted suicide attempt, many personal problems, failure to pass a PFT, many hospital visits, an NJP in violation of Article 86 and Page 11 for disobedience coupled with her current medical condition that prevents her from being fit for duty in the armed forces.040227: Counseling regarding recommendation for administrative...

  • USMC | DRB | 2007_Marine | MD0700067

    Original file (MD0700067.rtf) Auto-classification: Denied

    Elements of Discharge: [INVOLUNTARY] Date Notified: 19940831Basis for Discharge: due to: Least Favorable Characterization: Commanding Officer’s Intended Recommendation: Date Applicant Responded to Notification: 19940902 Rights Elected at Notification:Consult with Counsel Obtain Copies of DocumentsSubmit Statement(s) (date) Administrative Board (19941011)Commanding Officer Recommendation (date): (19940902)SJA review (date): (19941114)Separation Authority (date): COMMANDING GENERAL, 3D MARINE...

  • NAVY | DRB | 2006_Navy | ND0600159

    Original file (ND0600159.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). I strongly recommend that SNM be separated from the Naval Service with characterization of service as other than honorable.”920618: BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct. The Applicant informs the Board that he is a “father of three [and] thru them...

  • USMC | DRB | 2001_Marine | MD01-00885

    Original file (MD01-00885.rtf) Auto-classification: Denied

    MD01-00885 Applicant’s Request The application for discharge review, received 010625, requested that the characterization of service on the discharge be changed to general/under honorable conditions. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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 86, unauthorized absence for more than 30 days;...

  • USMC | DRB | 2011_Marine | MD1101610

    Original file (MD1101610.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant is not eligible for further reviews from the NDRB. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the...

  • NAVY | DRB | 2010_Navy | ND1000863

    Original file (ND1000863.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • USMC | DRB | 2008_Marine | MD0800034

    Original file (MD0800034.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP) 20000621 - 20000730 Active: Period of Service Under Review: Date of Enlistment: 20000731Period of enlistment: Years Months Date of Discharge: 20030530Length of Service: Yrs Mths07 Dys Education Level: Age at Enlistment: AFQT: 49MOS: 3381 Highest Rank: Fitness reports: Proficiency/Conduct marks (# of occasions): 3.7(6)/3.5(6) Awards and Decorations (per DD 214):...