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USMC | DRB | 2009_Marine | MD0900067
Original file (MD0900067.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081010
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT DUE TO A COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge: MARCORSEPMAN AND 6210.6 (COMMISSION OF A SERIOUS OFFENSE)

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     20010612 - 20020603     Active:  

Period of Service Under Review:
Date of Enlistment: 20020604     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060512      H ighest Rank:
Length of Service : Y ea rs M on ths 09 D a ys
Education Level:        AFQT: 41
MOS: 3381
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ICM (2) NUC

NJP:
- 20030805: NJP for d isobeying a lawful order by not adhering to liberty timelin es. Extracted from Commanding
Officer’s letter dated 20060425.

- 200308 26: NJP for b reaking restriction . Extracted from Commanding Officer’s letter dated 20060425 .

- 20041015 : Article 123 ( Forgery - a ltered the year of his Identification Card)
Article 134 (False or unauthorized pass offenses)
Awarded: Suspended:

- 20050114 : Article 92 (Failure to obey order or regulation - underage drinking)
A rticle 134 (Disorderly conduct, drunkenness)
Awarded : Susp ended:

SCM:

- 20060222 : Article 86 ( UA, a bsence without leave ) , 6 specifications
 Arti cle 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
Article 107 (False official statements) 2 specifications
 Article 134 ( R estriction , breaking )
 Sentence :

SPCM: CC:





Retention Warning Counseling :

- 20050124 : For your pattern of misconduct. Specifically, four NJP’s for violation of the UCMJ within a 31-m onth
 period. Due to operational commitments you are not being recommended for discharge at this time. This
counseling is to afford you one final opportunity to undertake corrective action.

- 20060110 : For being officially assigned to restriction awaiting court martial. You are required to muster every hour
from 0700-2200, Monday thru Sunday. If you violate this restriction you will be placed in pretrial
confinement.
- 20060301 : For violation of Article 86 (7) Absence without leave, 91 (1): Insubordinate conduct toward warrant
officer, noncommissioned officer, or petty officer, 107 (2) false official statements, 134 (1): Restriction,
breaking.

Administrative Corrections to the Applicant’s DD 214

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

          “ MISCONDUCT ”

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 86 ( UA, a bsence without leave) ; Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) ; Article 107 (False official statements) and Article 134 ( Restriction, breaking).



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

Applicant’s Issues

 1. Reenlist ment in U.S. Navy or U.S. Army.
2. V eterans A ffairs (VA) Health Care and Benefits.
3. Youth and immaturity .

                                                      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 DUE TO A COMMISSION OF A SERIOUS OFFENSE .
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 paragra p hs concerning Reenlistment/RE-code s and Service Benefits, regarding .

Issue 3 : ( ) . The Applicant contends his youth mitigates his in-service 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 r ecord of service was marred by one SCM for violations of the U niform C ode of M ilitary J ustice (UCMJ) : Article 86 ( UA, a bsen t without leave , 6 specifications ) ; Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer); Article 107 ( False official statements ) and Article 134 ( R estriction , breaking ) ; and four NJPs for violations of the U CMJ : Article 92 ( Failure to obey order or regulation - underage drinking ) ; Article 123 ( Forgery - a ltered the year of his identification card ) ; Article 134 ( False or unauthorized pass o ffenses and d isorderly conduct, drunkenness ). 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 punitive discharge but did hold a SCM and subsequently processed him for an a dministrative discharge.

The Applicant provides no documentation in support of his request for an upgrade. While the Applicant may believe his youth was a factor in his misconduct, the record does not reflect he was not responsible for his actions or not accountable for his misconduct due to youth or immaturity. The Board determined the awarded discharge characterization was appropriate and an upgrade was inappropriate.

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. Docum entation 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. E ach 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.



Other than the DD-293 form, the Applicant did not provide any additional documentation to show an improved level of maturity and good citizenship , nor did he provide other documentation or evidence in support of his request or post service conduct. 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 of an unfavorable discharge .

The Applicant remains eligible for a personal appearance hearing, prov ided an application is received at the NDRB within 15 years from the date of discharge. Should the Applicant f eel at some later time his post- service conduct is worthy of personally presenting to the NDRB there are organizations, such as the American Legion, willing to provide guidance and assistance in preparing such a presentation.

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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