Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0801959
Original file (MD0801959.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080926
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)     20030728 - 20040601     Active:  

Period of Service Under Review:
Date of Enlistment: 20040602     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060324      H ighest Rank:
Length of Service : Y ea r M on ths 23 D a ys
Education Level:        AFQT: 34
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ICM

Periods of UA / CONF :

NJP:
- 20050628 :       Article 91 ( Disrespectful towards a noncommissioned officer by disregarding an order to police call around the barracks)
         Awarded: Suspended:

- 20050823 :      Article 1 21 ( Tak ing a LCpl’s wallet from his room and used his ATM card to purchase gas and goods at Wal-Mart for a total of $155.99 )
         Awarded: Suspended:

- 20051031 :      Article 92 ( Disobey a written order and lawful order) 2 specifications
         Article 113 (Sleeping on post and misbehavior of sentinel) 2 specifications
         Awarded: Suspended:

- 20051219 :      Article 92 (Failure to obey a lawful order by going out to Rookies, drinking and getting into a fight )
         A rticle 121 (Wrongfully appropriate d another Marine’s driver’s license to consume alcohol while under age )
         Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 20050114 :       For acting in a belligerent and disrespectful manner towards Marines of a higher rank. SNM driving reck l essly while on liberty in Jacksonville, NC


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 P1900.16F), 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 .

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, 113, and 121 .



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

Applicant’s Issues

 1. Education opportunities.
2. Employment opportunities.
3. Youth at time of misconduct.
4. Record of service.
 5. Physical and mental abuse.

Decision

 Date: 20 0 9 0129            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 .

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his youth at the time of 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 record of service was marred by one retention warning and four NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Disrespect toward a superior noncommissioned officer); Article 92 (Disobeying a lawful order); Article 113 (Misbehavior of a sentinel or lookout); and Art icle 121 (Larceny and wrongful appropriation). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a court martial but opted instead for an administrative discharge. While the Applicant may feel his youth was the underlying cause of 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 due to his youth. The Board determined the Applicant’s contention is without merit and the awarded discharge characterization was appropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his record of service. The NDRB rejects the Applicant’s contention as without merit. The record of evidence shows the Applicant was found guilty at four NJPs over a 6 month period for violations which could have resulted in confinement or punitive discharge. An upgrade founded upon the Applicant’s record of service would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because he was verbally and physically abused by an unnamed NCO. Specifically, he claims his response to the NCO lead to his NJP and subsequent discharge. The Applicant appears to be referring to his first NJP on 28 June 20005, which was for disrespect toward a senior NCO. If he believed he was innocent of the charges against him at the time of the event, he should have refused NJP and demanded a trial by court-martial. Furthermore, the Applicant was not processed for separation until he received three more NJPs in the following six months for offenses which can not logically be blamed on abuse. The NDRB rejects the Applicant’s contention as being without merit. The awarded discharge characterization was appropriate and a n upgrade founded upon mental and physical abuse 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

Similar Decisions

  • USMC | DRB | 2008_Marine | MD0801688

    Original file (MD0801688.doc) Auto-classification: Denied

    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 Representation: From Congress member: Other Documentation: DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • USMC | DRB | 2007_Marine | MD0701233

    Original file (MD0701233.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of ServicePrior Service: Inactive: USMCR (DEP)20020307 - 20021014Active: Period of Service Under Review: Date of Enlistment: 20021015Years Contracted:; Extension: Date of Discharge:20050414Length of Service: Yrs Mths29 DysLost Time:Days UA: Days Confined: Education Level:...

  • USMC | DRB | 2010_Marine | MD1001827

    Original file (MD1001827.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 . ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2011_Navy | ND1100880

    Original file (ND1100880.rtf) Auto-classification: Denied

    ” 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. 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. Additionally, the NDRB has no authority to upgrade a...

  • NAVY | DRB | 2009_Navy | ND0901284

    Original file (ND0901284.rtf) Auto-classification: Denied

    Representation: 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 Government affairs unless there is substantial credible evidence to rebut the...

  • USMC | DRB | 2009_Marine | MD0900360

    Original file (MD0900360.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall COMPLETION OR REQUIRED ACTIVE SERVICE.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 NDRB concurs with the Applicant’s contention his Narrative Reason for Separation should not indicate his discharge was ordered by a Court-Martial; therefore the Narrative Reason should be changed to “Completion of Required Active...

  • NAVY | DRB | 2009_Navy | ND0900558

    Original file (ND0900558.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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.Besides the Applicants...

  • NAVY | DRB | 2006_Navy | ND0600480

    Original file (ND0600480.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests upgrade of his discharge to honorable. The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.

  • USMC | DRB | 2009_Marine | MD0900355

    Original file (MD0900355.rtf) Auto-classification: Denied

    The Board determined the awarded discharge characterization was appropriate and an upgrade wouldbe inappropriate.The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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...

  • NAVY | DRB | 2008_Navy | ND0801604

    Original file (ND0801604.rtf) Auto-classification: Denied

    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 conduct mitigates the reason for the characterization of discharge.The Applicant submitted a statement with his DD-293 Application claiming employment, education efforts, and participation in his church and in other community service. The Board determined the characterization...