Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900168
Original file (MD0900168.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081028
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)     20020904 - 20021027     Active:  

Period of Service Under Review:
Date of Enlistment: 20021028     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061201      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 32
MOS: 0612
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ICM MM

Periods of UA / CONF : / CONF: See below

NJP:
- 20040224 :      Article 91 (Disrespectful to DNCO when told to turn his music down in his room, slammed door in DNCO’s face and approached the DNCO in a hostile manner)
         Article 92 (Failed to obey an order when told to turn his music down).
         Awarded : Susp ended:

- 20041215 :       Article 92 (Willfully failed to obey a direct order to change his socks)
         Awarded: Suspended:

SPCM:

- 20060830 :       Art icle 123 (With intent to defraud, falsely make in its entirety the signature of 1stLt to authorize the termination of an apartment rental agreement and with intent to defraud, transfer a certain writing in the following words and figures “He is going to be deployed as of 20 December 05, in support of Operation Iraqi Freedom III, ” ) , 2 specifications
         Article 128 (Unlawfully strike a Corporal)
         Article 134 (Drunk and disorderly)
          Sentence : Reprimand, FOP, RIR to E-3, CONF FOR 60 DAYS (20060830-20061018 (50 days))
         CA Action 20061207: Findings are approved as entered and the sentence is approved as adjudged except that the reprimand is disapproved.
CC: SCM:





Retention Warning Counseling :

- 20030609 :       For disobeying a lawful order Article 92 . O n June 3 rd , 2003 PFC was given a lawful order to take out the trash in his room by a LCpl. Instead of taking out a ll the trash , PFC proceeded to pull out some articles and take them out. When order to take out all the trash he refused saying he took his trash out. After several attempts at ordering him to take out the trash he threw the trash across the room. As a result he ordered to pick up the mess which he also refused to do. At this time LCpl and PFC got in an argument which results in a fight.

- 20050819 :       For your lack of leadership and judgment in the conduct of your official duties. SNM disobeyed a lawful order by Company Gunnery Sergeant to be a Shea Field at 0430 on 20050819. SNM showed up at Shea field at 0500 on 20050819.

- 20060926 :       For your most recent violation of the UCMJ, Article 123, Forgery, Article 128, Assault, Article 134 Drunk and disorderly. More specifically you received Special Courts-Martial where you received reduction to LCpl, 60 days confinement, and forfeiture of $1000 per month for 3 months.

Administrative Corrections to the Applicant’s DD 214

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

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ 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 p resent.

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-ma rtial for violation of the UCMJ: Article 91, Article 92, Article 123 and Article 128 .



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

Applicant’s Issues

 1. Education opportunities.
2. Record of service.
3. Post-service conduct.
4. Improper discharge according to the terms of plea agreement.

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 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. The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding .

: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his record of service. 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 three retention warnings, two NJP ’ s and one SPCM for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Willfully disobeying a noncommissioned officer); Article 92 (Disobeying a lawful order); Article 123 (Forgery); Article 128 (Assault consummated by battery); and Article 134 (Drunk and disorderly). Violations of Article 91, Article 92, Article 123 and Article 128 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. Despite a Marine’s prior record of se rvice, certain serious offenses warrant separation from the n aval service in order to maintain proper order and discipline. The NDRB determined the warded discharge characterization was appropriate and an upgrade founded upon the Applicant’s record of service would be inappropriate.
: ( ) . 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 in Iraq as a civilian contractor and a statement he has obtained a private pilot’s license. While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct was not sufficient to warrant an upgrade. 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, “General (Under 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.

 : ( ) . The Applicant contends he is entitled to a discharge upgrade because of the terms of his plea agreement. Specifically, the Applicant contends “…I signed a agreement that the command could not use other things from my record besides the charges I was pleading guilty (to)…” The Applic ant appears to be referring to the paragraph cited below:

14.d. I agree to waive any administrative discharge board that is based on any act or omission reflected in the charges and specifications that are the subject of this agreement. I understand that any administrative discharge will be characterized in accordance with service regulations and may be under other-than-honorable conditions. I fully understand the nature and purpose of an Administrative Discharge Board and the rights that I would have at such a Board.

The record of evidence shows the relevant events in the Applicant’s separation processing:

         -22 September 2006: Applicant’s company commander recommends administrative separation for Commission Of a Serious Offense (COSO) and Pattern Of Misconduct (POM) with an “Under Other Than Honorable Conditions” (OTH) characterization of service.
         -24 September 2006: CO 9 th Comm Bn notifies Applicant of initiation of administrative separation process for COSO and POM, recommends OTH discharge.

-25 September 2006: CO 9 th Comm Bn forwards request for administrative separation to the separation authority, CG I MEF. The CO notes the Applicant refused to acknowledge the notification and advisement of his rights.
         
         - 13 October 2006: CO I MEF Hq Group endorses administrative separation request.

         -24 October 2006: CO 9 th Comm Bn advises CG I MEF of efforts to get Applicant to sign his acknowledgement of rights.
         -26 October 2006. The Staff Judge Advocate for I MEF certifies the Applicant has been notified of the discharge proceedings and advised of his rights, but still refuses to sign the acknowledgment.
         -8 November 2006: CG I MEF directs the Applicant be discharged with a general discharge due to a pattern of misconduct.

The record of evidence does not support the Applicant’s contention. Although not clearly stated in his DD-293 Application, the NDRB presumes the Applicant believes he waived his rights only to an Administrative Separation Board based on the charges against him and did not waive his rights to an Administrative Separation Board based on earlier misconduct in his service. The record of evidence clearly shows the Applicant’s discharge was determined to be for the narrative reason of “Pattern of Misconduct.” This pattern was established by the Applicants prior NJPs and the SPCM. The NDRB notes the Applicant was advised on 19 August 2005 “…that failure to take corrective action and any further disciplinary infractions violating the UCMJ may result in administrative separation…” As shown by his SPCM conviction, he did not adhere to this retention warning. The NDRB determined the awarded discharge was appropriate and 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

  • USMC | DRB | 2005_Marine | MD0500822

    Original file (MD0500822.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. I have completely made a turn around for the sake of myself and my family.” My discharge was improper because of small Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (2) Earnings Statement dtd March 16, 2005 Enrollment Verification Letter from F_ K_, Dean,...

  • NAVY | DRB | 2004 Marine | MD04-00183

    Original file (MD04-00183.rtf) Auto-classification: Denied

    MD04-00183 Applicant’s Request The application for discharge review was received on 20031107. So, I leave it in your hands to help me!” Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USMC None HON Inactive: USMCR (J) 870519 - 871116 COG Period of Service Under Review :Date of...

  • USMC | DRB | 2005_Marine | MD0500884

    Original file (MD0500884.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. )“I was discharged from the Marine Corps for continued underage drinking. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

  • USMC | DRB | 2011_Marine | MD1101277

    Original file (MD1101277.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A.Paragraph 6210, MISCONDUCT ,...

  • USMC | DRB | 2006_Marine | MD0600543

    Original file (MD0600543.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Character, Narrative Reason, and Authority of Discharge (at time of issuance):UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. ), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative separation due to pattern of misconduct.050131: DD Form 214: Applicant discharged under...

  • USMC | DRB | 2015_Marine | MD1500352

    Original file (MD1500352.rtf) Auto-classification: Denied

    The Applicant’s record of service included 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article (Failure to obey an order or regulation, 2 specifications), and Article (General article, Drunk and disorderly in his conduct towards a SSgt (SDO) and Sgt (DNCO); and for of the UCMJ: Article 86 (Absence without leave), Article 92 (Failure to obey order or...

  • USMC | DRB | 2005_Marine | MD0500850

    Original file (MD0500850.rtf) Auto-classification: Denied

    Violation of UCMJ Article 91: Specification: In that Lance Corporal M_ (Applicant) with 3rd Intelligence Battalion, III MHG, III MEF, having received a lawful order from Sergeant T_, a noncommissioned officer, to report to Sgt J_, an order which it was his duty to obey, did on board Camp Hansen, willfully disobey the same. Charge I: violation of the UCMJ, Article 107 (2 Specs): Specification 1: In that Private D_ D. M_ (Applicant), U. S. Marine Corps, 3d Intelligence Battalion, III Marine...

  • USMC | DRB | 2005_Marine | MD0501381

    Original file (MD0501381.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION The infractions cited in the commanding officer’s recommendation occurred prior to corrective actions and did not warrant admin separation until my enlistment was due to expire.”Additional issues submitted by Applicant’s representative: “Issue 1: Whether applicant received a fair & impartial hearing on discharge by not having the recommendations of his superior officers, whom had direct knowledge of his military ethics & bearing, considered...

  • USMC | DRB | 2005_Marine | MD0500926

    Original file (MD0500926.rtf) Auto-classification: Denied

    After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).The Applicant contends that his discharge was improper as his administrative separation was not part of the sentence adjudged at his special court-martial. As of this time, the Applicant has not provided any post-service documentation for the Board to consider relief on this basis.The Applicant remains eligible for...

  • NAVY | DRB | 2006_Navy | ND0600770

    Original file (ND0600770.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Decisional Issues: None Documentation In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member 4) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 19960227 – 19960610 COG Active: None Period of...