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USMC | DRB | 2009_Marine | MD0900165
Original file (MD0900165.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081029
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)     20020201 - 20020414     Active:  

Period of Service Under Review:
Date of Enlistment: 20020415     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070414      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 80
MOS: 5979
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF :

NJP:
- 20031203 :       Article 92 (Violated WgO 1050.5 by refusing to return with his Liberty Buddy )
         Article 134 (Drunk to the extent that he was found unconscious and bleeding from the head)
          Awarded: Suspended:

- 20050829 :      Article 86 ( UA, f ail ure to go at time prescribed to appointed place of duty - remedial PT) , 2 specifications
         Awarded: Suspended:

- 20060728 :      Article 86 ( UA, a bsent from appointed place of duty ), 3 specifications:
                  - Guard duty
                  - Section PT
                  - Guard duty
         Awarded: Suspended: Vacate suspension 20060817

- 20061213 :      Article 86 ( UA, a bsent from appointed place of duty - Body Composition Program) , 2 specifications
         Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling : 7

- UNDATED :        For violation of WgO 1050.5 “Liberty Buddy Policy” and your drunkenness on or about 20031101. Specifically, you refused to return with you Liberty Buddy and were s o intoxicated that you were found out in town unconscious and bleeding from the head, which required medical attention. The failure to return with you Liberty Buddy and the gross intoxication demonstrates a lack of maturity, judgment, and respect for yourself and your follow Marines.

Retention Warning Counseling (cont) 7:

- 20050228 :       For first assignment to weight control, overweight by 16 pounds; max weight and body fat by MCO 6100.10B is 208 pounds and a body fat of 18%. SNM’s weight is 224 and body fat is 19%.

- 20050415 :       For you have been counseled numerous times on violation of Article 86 of the UCMJ for your failure to be at your appointed place of duty at the prescribed time, to which you also violated Article 92 by failing to obey an order issued by your NCOIC to be at you appointed place of duty at the prescribed time.

- 20050620 :       For unsatisfactory performance while assigned to the Marine Corps’ BCP and weight control program. Due to insufficient effort you failed to meet your weight/body fat reduction goals as prescribed by the medical officer for your 4 th month evaluation in June 2005.

- 20050825 :       For assignment to the Marine Corps BCP. Specifically, you have not meet the Marine Corps’s body composition standards, but have made satisfactory progress during your first 6-month BCP assignment. You have been granted an extension for 6 additional months and will be required to return to body composition standards upon Program extension expiration.

- 20060531 :       For your failure while on the BCP program in that you are still over your Max weight.

- 20061211 :       You have had 4 non - judicial punishments and have failed to meet the minimum standards required of a Marine.

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 92 .



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

Applicant’s Issues

 1. Only minor incidents of misconduct.
2. Mitigating medical problems.
3. Record of service.
4. Post-service conduct.

Decision


 Date: 20 0 9 0212            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
Discussion

 : ( Propriety and ) . The Applicant has requested an upgrade in his discharge characterization to “Honorable”. 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 7 retention warnings and 4 NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, failure to go), 5 specifications total; Article 92 (Failure to obey an order or regulation) and Article 134 (Drunkenness). These repetitive violations are considered serious in nature and could have resulted in the confinement and a punitive discharge if adjudicated and awarded by a special or general court-martial. The command did not refer the Applicant to a court-martial nor did they process him for an administrative separation; he finished out his military contract by reaching the End of Active Service (EAS) and was discharged.

The NDRB carefully considered the Applicant’s case. The record of evidence shows he was separated from the Marine Corps with an “Under Other Than Honorable Conditions” discharge on 14 April 2007 based on “Pattern of Misconduct.” The NDRB noted the Applicant did have a significant record of minor misconduct and apparently failed to meet the Marine Corps’ Body Composition standards, although this is not properly documented in the Applicant’s service record. The record also shows the Applicant was being processed for an administrative discharge for substantiated misconduct, but because of inaction by the command the Applicant was allowed to serve to his EAS. The record of evidence shows the Applicant entered active duty on 15 April 2002 with a five year obligation to serve on active duty : This contract expired on 14 April 2007. The Marine Corps Separations and Retirement Manual explicitly directs the characterization of service for Marines separated at their EAS will be “Honorable” unless the Marine’s proficiency and conduct marks are less than 3.0 and 4.0, respectively. The record shows the Applicant’s marks are above this threshold at 4.3 and 4.2, respectively . The NDRB determined the Applicant completed his obligated period of service and is therefore entitled to an upgrade of his discharge to “Honorable” and a change to the narrative reason for separation to “Secretarial Authority. ” However, because of the noted repeated minor misconduct t he NDRB does not recommend or support a change to the Applicant’s reentry code.

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 the discharge was improper and inequitable.


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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