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USMC | DRB | 2009_Marine | MD0900013
Original file (MD0900013.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)       20020905 - 20021027     Active:  

Period of Service Under Review:
Date of Enlistment: 20021028     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061030      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 2 D a y ( s )
Education Level:        AFQT: 34
MOS: 3112
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      SSDR (3) GWOTSM NDSM NUC Rifle Pistol

Lost Time per DD 214 : 20060226-20060628 (3 DAYS)

NJP:
- 20040707 :       Article 91 ( Insubordinate conduct )
         Article 92 (Failure to obey)
          Awarded : CCU Susp ended:

- 20050427 :       Article 86 ( UA ) , 2 specifications
         Article 91 ( Insubordinate conduct), 2 specifications
         Awarded : Susp ended:

SCM:

SPCM:

CC:

- 20060309 :       Offense: Battery, 3 specifications; Battery against spouse, 3 specifications; False imprisonment
         Sentence : Fine, Public Service, Domestic violence rehab, No firearms for 10 years , 3 years probation .

Retention Warning Counseling :

- 20040227 :       For willfully disobeying a lawful order and insubordinate conduct.
- 20040707 :       For NJP from violations of UCMJ Article(s) 91 and 92.
- 20050427 :       For NJP from violation of UCMJ Article (s) 86 and 91.
- 20060320 :       For civilian conviction on 20060309.
- 20060712: For p ending administrative separation due to civil conviction on 20060309.



NDRB Documentary Review Conducted (date):        20080509
NDRB Documentary Review Docket Number:   MD08-00454
NDRB Documentary Review Findings:                 No change 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 :



Applicant Testified:
Applicant Available for Questions:
Witnesses: A _ W _ (Wife)
Observers:

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 86, Absence without leave, Article 91, Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer and Article 92, Failure to obey order or regulation .




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

Applicant’s Issues

 1. Applicant claims d ischarge inequitable due to his c ivil c onviction being blown out of proportion .
2. Applicant requests p ost -s ervice conduct consideration.       
3. Applicant seeks to r eenlist .

Decision


 Date: 2009 1007            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 that his civil conviction was blown out of proportion resulting in a rushed administrativ e separation process and an unjust discharge . 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 servic e reflect s five retention warnings and two Non -j udicial Punishments ( NJP s ) for violation s of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized Absence), Article 91 (Insubordinate conduct toward s a w arrant o fficer, noncommissioned officer or petty officer ) , and Article 92 (Failure to obey an order or regulation). T he Applicant also received a civilian conviction for domestic violence/spousal battery which constituted a qualifying convict ion under the Lautenberg Act requiring processing for administrative separation . Additionally, the Applicant’s service record reflects below average Proficiency and Conduct (Pro/Con) marks of 3.9/3.8 which warrant a General (Under Honorable Conditions) discharge characterization. Violations of Article 91 and Article 92 are considered serious violations 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 pursue a punitive discharge, but instead opted for an administrative discharge. The Applicant appeared before an administrative discharge board, which recommended his separation with a General (Under Honorable Conditions) discharge. The Applicant produced documentation that his civil conviction was expunged , which the B oard took into account.

: ( ) . Besides the Applicant’s DD Form 293, the Applicant provided nine teen character ref erences, inclu ding confirmation of attending a c ourt - certified domestic violence treatment program . The Applicant also provided evidence of a drug and crime free lifestyle, vocational training and educational pursuits . The Board determined the evidence of post- service conduct , while commendable, was not sufficient to warrant an upgrade of his discharge characterization . The Board determined the characterization of se rvice received, General (Under Honorable Conditions ) , was appropriate consid ering the length of service, the UCMJ vi olations involved and the limited post-service documentation provided .

: ( ) . The Applicant expressed a desire to re enlist in the Armed Forces of the United States. 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.

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 .

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 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 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.
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 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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