Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900066
Original file (MD0900066.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)     20010719 - 20020210     Active:  

Period of Service Under Review:
Date of Enlistment: 20020211     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051026      H ighest Rank:
Length of Service : Y ea rs M on ths 16 D a ys
Education Level:        AFQT: 37
MOS: 4421
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):     

NJP:
- 20020808 :       Article 91 (Failure to obey a lawful order )
         Awarded: Suspended:

- 20031107 :      Article 86 (UA 2359, 20031004 to 1625, 20031013 ( 8 days, 16 hours, and 26 minutes) )
         Awarded: Suspended:

- 20031223 :      Article 111 (Driving under the influence BAC of .13%)
         Article 1 34 ( Contributing to the delinquency of a minor)
         Awarded: CCU for 30 days 20031224-20040115 (23 days) RIR FOP Su spen ded:

SCM:

- 20050728 :       Art icle 86 (UA 20050215)
         Article 92 (Violating MCO P1020.34G by wrongfully wearing hoop earrings and violation of order by MP) 2 specifications
         Article 111 (Drunk driving)
          Sentence : 20050729-20050818 (21 days)
         CA Action (20050728) Approved and ordered executed.

SPCM: CC:

Retention Warning Counseling :

- 20020715 :       For violation of a written order, to wit: being in the opposite sex room after 2200 and unauthorized absence.


- 20020715 :       For underage drinking and being late for formation after PT.

Retention Warning Counseling (cont) :

- 20021213 :       For failing to report to appointed place of duty, to wit: the office of the Staff Judge Advocate on more than one occasion between September and November 2002 timeframe.

- 2003122 3:       For your NJP held on 20031223 for violating Article 111.

- 20050209:      For your failure to be at appointed place of duty on time at 0730 on 20041220 and 20041221.

Administrative Corrections to the Applicant’s DD 214

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

         “ HKA1 ”

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 :

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, Article 92 and Article 111 .



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

Applicant’s Issues

 1. Punishment was too severe for minor misconduct.

Decision


 Date: 20 0 9 0205            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 because the punishment he received was too severe for his minor 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 five retention warnings, three NJPs and one SCM for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA); Article 91 (Willfully disobeying a noncommissioned officer); Article 92 (Disobeying a lawful order); Article 111 (Drunk driving); and Article 134 (Contributing to the delinquency of a minor). Violations of Article 91, Article 92 and Article 111 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.

The Applicant appears to understand his administrative separation was part of the punishment he was awarded following conviction at his SCM. However, a SCM does not have the authority to separate a Marine. The Applicant’s command, however, chose to initiate the separation process following his conviction. The NDRB rejects the Applicant’s contention as being without merit . The record of evidence clearly shows a pattern of serious misconduct sustained throughout his enlistment and the awarded discharge characterization was within established policy of Naval discipline, to include the Marine Corps . The Board determined an upgrade 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

  • NAVY | DRB | 2008_Navy | ND0800122

    Original file (ND0800122.rtf) Auto-classification: Denied

    ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for...

  • USMC | DRB | 2008_Marine | MD0800379

    Original file (MD0800379.rtf) Auto-classification: Denied

    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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record, Discharge Process and evidence submitted by the Applicant, the Board found that Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT...

  • 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...

  • USMC | DRB | 2008_Marine | MD0801960

    Original file (MD0801960.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall COURT-MARTIAL.Discussion :().The Applicant contends he deserves better than a “Bad Conduct” discharge after serving many years in the Marine Corps and taking part in Operation Iraqi Freedom in 2003. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. If a former member has been discharged for...

  • USMC | DRB | 2008_Marine | MD0800480

    Original file (MD0800480.rtf) Auto-classification: Denied

    Awarded - Susp - 6105 Counseling: 20050426: For DUI 20051209: For Wrongful use of cocaine Types of Documents SubmittedRelated 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...

  • USMC | DRB | 2008_Marine | MD0800383

    Original file (MD0800383.rtf) Auto-classification: Denied

    Types of Documents SubmittedRelated 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 REVIEW...

  • USMC | DRB | 2008_Marine | MD0800819

    Original file (MD0800819.rtf) Auto-classification: Denied

    Awarded - ,,Susp - 20050317: Art(s) 121 (Larceny).Awarded - ,,,Susp - 6105 Counseling: 20020826: For Unauthorized absence.20021211: For Unauthorized absence Types of Documents SubmittedRelated 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:...

  • NAVY | DRB | 2008_Navy | ND0801360

    Original file (ND0801360.rtf) Auto-classification: Denied

    The Board determined the awarded characterization was appropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, 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...

  • USMC | DRB | 2007_Marine | MD0700751

    Original file (MD0700751.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)20020725 - 20020902Active: Period of Service Under Review: Date of Enlistment: 20020903Years Contracted:; Extension: Date of Discharge:20051222Length of Service: 03 Yrs 03Mths20 DysLost Time:Days UA: Days Confined: Education...

  • USMC | DRB | 2009_Marine | MD0900400

    Original file (MD0900400.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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.Besides the Applicants statement on the DD Form 293 there was no post service documentation provided. After a thorough review of the available...