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USMC | DRB | 2009_Marine | MD0900012
Original file (MD0900012.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081001
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)       19990527 - 19990906     Active:   19990907 – 20021002 HON

Period of Service Under Review:
Date of Enlistment: 20021003     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050923      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 39
MOS: 0121 /8530
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) AFEM (2) COC COA

Periods of UA / CONF :

NJP:
- 20031001 :       Article 92 ( Failed to obey lawful order - Fraternizing with a Navy student)
         Article 111 (Driving recklessly in the La Hacienda parking lot, Ft Huachuca, AZ)
                  Awarded : Susp ended:

- 20050329 :       Article 92 ( Failure to obey order or regulation - 2 Specifications: unprofessional relationship with student)
                  Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :
- 20030709 :       For violation of Article 92, dereliction of duty, failing to ensure that Marines under the age of 21 were not consuming alcohol while in his presence and using poor judgment on 20030702.
- 20031001 :       For violation of Article 92, disobeying a written order by fraternizing with a Navy student on 20030927, and violation of Article 111, reckless driving.

Administrative Board: 20050805
Majority vote – Preponderance of the evidence proves all acts or omissions alleged in the notification.
 Majority vote – Recommends separation and should not be suspended or retained in the IRR.
Majority vote – Recommends Characterization of Service should be Under Other Than Honorable Conditions.


NDRB Documentary Review Conducted (date):        20070719
NDRB Documentary Review Docket Number:   MD06-01131
NDRB Documentary Review Findings:                 Discharge proper and equitable as warranted

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 .



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

Applicant’s Issues

 1. The Applicant seeks reenlistment into the Marine Corps.
2. The Applicant states that his Commander’s strictness was unfair due to the fact his assignment was in a student environment .
3. The Applicant feels that he was singled out by his supervisors and was mistreated.
4. The Applicant feels his accomplishments were not taken into consideration during his separation .

Decision

 Date: 20 0 9 0923            Location: Washington D.C .         R epresentation :

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 evidence submitted by the Applicant . The Applicant’s record of service included 6105 counseling warnings and non - judicial punishments (NJP’s) for o f the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation: one specification of fraternizing with a Navy student and two specifications of having an unprofessional relationship with a female student, LCpl B_) and Article 111 (Driving recklessly). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified for a dministrative s eparation p rocessing, the Applicant elected to invoke rights to consult with qualified counsel, to submit a written statement for consideration by the separating authority and to request an a dministrative s eparation b oard (ASB) . The Applicant appeared before an ASB in Quantico, Virginia; wh ich determined, by a majority vote, that the preponderance of the evidence prove d all acts or omissions alleged and that the Applicant should be separated from the Marine Corps with an Under Other than Honorable Conditions characterization of service.

: (Nondecisional) The Applicant seeks to reenlist into the Marine Corps. 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 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.
Issue 2 : (Decisional) ( ) . The Applicant con tends that issues ranging from “the country is at war” to his seniority were used against him by his commander during his punishment, which he believes was unfair due to the fact th at his duty station was a school environment . The Board opined that r egardless of where a Marine serve s, they are ex pected to conduct themselves professionally at all times —even while serving in academic environments . The comments of the commanding officer , noted in an official memorandum involving the Applicant were very telling on his opinion of the Applicant, specifically: “Although Sgt W_ thinks that he has learned from his mistakes, his actions prove otherwise. Not only has he been subject of n onjudicial punishment for the same offense on two separate occasions (for which he received considerable advic e on remediation) , but he ha d also witnessed other Marines of the command suffer consequences for similar conduct. This clearly demonstrates his inability to learn from the shortcomings of his past and those of others. If retained for future service , it is likely that the Marine will engage in the same type of misconduct a nd cause additional burden for the Marine Corps. ” The Board opined that the command gave the Applicant multiple chances to conform, but l ost confidence in his abilities to conduct himself appropriately, especially in a student atmosphere. Relief denied.

Issue 3: (Decisional) ( ) . The Applicant contends that he was singled out by his supervisors and was mistreated. In the hearing, t he Applicant brought up the fact that the command isolated him and would not allow him to continue his duties as a clerk . Although the Applicant may feel that he was treated unfairly, he provided no evidence to support his claims. In the Board ’ s opinion, the command lost special trust and confidence in the Applicant to perform his duties as a Sergeant of Marines, due to the nature of his misconduct. The Board determined the command was acting within its best judgment i n order to maintain good order and discipline within the unit . Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends his accomplishments were not taken into consideration. In the Board ’ s opinion, the commanding officer took the Applicant’s accomplishments into consideration when he recommend ed that he be discharged with a General (Under Honorable Conditions). Unfortunately for the Applicant , the C ommanding G eneral did not concur with th is recommendation and chose to discharge the Applicant with an Under Other Than Honorable Conditions due to his pattern of misconduct. With regards to post-service accomplishments, the Applicant failed to provide any verifiable documentation to the Board for consideration in upgrading his discharge. 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 directed to the Addendum, specifically the paragraphs titled Additional Reviews, Reenlistment/RE-code , and Post-Service Conduct .




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

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