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USMC | DRB | 2009_Marine | MD0900040
Original file (MD0900040.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081002
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: NONE            Active:  

Period of Service Under Review:
Date of Enlistment: 19971029     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010509      H ighest Rank:
Length of Service : Y ea rs M on ths 11 D a ys
Education Level:        AFQT: 31
MOS: 3381
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA

Periods of UA / CONF : NJP: SCM: SPCM: CC:

Retention Warning Counseling :

- 19990414 :       For unprofessional handling and conduct when dealing with prisoners which led to a minor incident aboard the mess deck.

- 20000426 :       For failure to meet monthly weight loss goal while assigned to the Weight Control Program. LCpl ’s monthly weight loss goal is 4 pounds and 2% body fat. LCpl gained 1 pound and 1 percent body fat over a 30 day period, thereby failing to meet his assigned monthly goal.

- 20000605 :       For failure to meet monthly weight loss goal while assigned to the Weight Control Program. LCpl’s monthly weight loss goal is 4 pounds and 2% body fat. LCpl gained 2 pounds and 1 percent body fat over a 30 day period, thereby failing to meet his assigned monthly goal.

- 20000608 :       For failure to pay a financial debt. Recently, this command received a letter from a creditor indicating that you failed to pay as promised a sum on a monthly basis. This behavior is unacceptable and is not in keeping with Marine Corps standards and traditions. In addition, your failure to adhere to orders and/or regulations demonstrates your lack of professionalism, leadership, and non-reliance to what is expected of a Marine of your grade.

- 20000928 :       For being in violation of Article 92 of the UCMJ by failing to obey an order by 13 Area Medical Officer on or about 0830, 20000920, whereas, the LCpl was ordered to a revised medical status which included a 48 hours no duty/rest “at home” chit. However, the LCpl was noted on or about 1900, 20000920 at the 2498 Barracks, which is not his assigned place of residence. This behavior is unacceptable and is not in keeping with Marine Corps standards and traditions. In addition, your failure to adhere to orders and/or regulations demonstrates your lack of professionalism, leadership, and non-reliance to what is expected of a Marine of your grade.

- 20000928 :       For failure to meet monthly weight loss goal while assigned to the Weight Control Program. Your failure to adhere to orders and/or regulations demonstrates your lack of professionalism, leadership, and non-reliance to what is expected of a Marine of your grade.

- 20001024 :       On 20000920 LCpl C . reported to me that he had seen the LCpl at the barracks for several hours while he was on a 2 day bed rest chit. When I confronted the LCpl the next day he reported that he was at the barracks and he was attempting to find my telephone number. I told him he was confined to his home due to a viral sickness and could have used directory assistance. He admitted it was wrong for him to be at the barracks and he knew this. On 20000926 the LCpl was instructed to report to work at 0500 for the ACA inspection on 20000927. On 20000927 he was UA 1 hour and did not report until 0600. When he was asked why he did not even attempt to call in he said he was already too late to call. The LCpl was instructed to report to work by the GySgt . All deficiencies previously cited and misconduct during your current enlistment, both prior to and subsequent to the date of this action, result in disciplinary action and/or processing for administrative discharge. Subsequent violation(s) of the UCMJ or conduct resulting in civilian conviction could result in an administrative separation under other than honorable conditions.

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 .




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

Applicant’s Issues

 1. Mitigating circumstances.
2. M istreatment by chain of command.
3 . Post-service conduct.

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

 : ( ) . The Applicant contends he is entitled to a discharge upgrade due to circumstances which mitigated his misconduct. Specifically, the Applicant contends he was injured in a car crash prior to entering the Marine Corps, and the resulting chronic lower back pain le d to 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 seven retention warnings for improper handling of prisoners, failure to pay debts, disobeying lawful orders, unauthorized absence, and for failure in maintaining body composition standards. The NDRB rejects the Applicant’s claim his lower back pain caused this extensive and varied list of misconduct as being without merit . The Board determined the awarded discharge characterization was appropriate and a n upgrade founded upon his lower back pain would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his mistreatment by his chain of command. Specifically, the Applicant contends his 1 st Sgt made him PT while on light duty, called him names because of his weight and refused to handle his administrative separation based on his chronic lower back pain. While the Applicant’s medical record does indicate medical authorities did consider possible future recommendation for administrative separation or medical board, there is no evidence which shows the specific recommendation was ever made. Furthermore, the record of evidence does shows the Applicant was not making sufficient effort on his part and simply wanted out of the Marine Corps. On 21 April 1999 the Applicant’s medical record documents treatment by Physical Therapy at Camp Pendleton where the Applicant stated to the physical therapist “I do not want to be a Marine” and “I do not want to do lifting o r Company PT”. The therapist noted the Applicant was “ recalcitrant , questionable follow-t hrough with home program”. Finally, the Applicant should understand any documented misconduct during a medical board process effectively suspends the medical board process . The Applicant is directed to the Addendum , specifically the paragraph concerning Medical Conditions and Misconduct , regarding the suspension of medical boards in cases involving misconduct.
: ( ) . The Applicant contends he is entitled to a discharge upgrade because of 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 evidence of employment since November 2006, documentation of vocational training and education, and several character reference letters. 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.
BOARD ISSUE (Propriety) : RELIEF WARRANTED

Upon careful review of the Applicant’s separation process , the NDRB determined the chain of command made an administrative error which compromises the equity of the Applicant’s discharge. Specifically, the commanding officer’s letter to the Applicant dated 6 April 2001 notifying him of the separation proceedings stated the least favorable characterization the Applicant could receive was “ G eneral ( U nder O ther T han H onorable C onditions).” The NDRB believes the command’s intent was to separate the Applicant with an “Under Other Than Honorable” characterization. However, the wording in the command’s letter does not clearly convey th is to the Applicant , as required by regulations. The NDRB therefore determined the basis for discharge “Minor Disciplinary Infractions” was proper, but that the Applicant’s characterization shall be changed to “General (Under Honorable Conditions). ”

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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