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USMC | DRB | 2009_Marine | MD0900194
Original file (MD0900194.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081030
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)     19990927 - 20000725     Active:  

Period of Service Under Review:
Date of Enlistment: 20000726     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021030      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 35
MOS: 3500
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : UA: 0730, 20020406 to 1915, 20021012 (189 days, 11 hours and 45 minutes) / 20011216 to 20011220 (5 days) [Extracted from DD Form 214, Block 29] /

NJP:
- 20010504 :       Article 92 (Violate LOS Policy Memorandum 00-4 by driving a POV aboard Camp Johnson while in student status)
          Awarded: Suspended:

- 20010615 :      Article 92 (Failed to obey regulations by consuming alcohol under the legal drinking age.
         Article 107 (Made a false official statement)
         Awarded : Susp ended:

- 20020118 :      Article 86 ( UA and f ailure to report to appointed place of duty ), 2 specifications:
                  - Failure to report at 0800 20010910
                  - UA from 20011213 to 20011215 (2 days )
         Article 92 (Failure to obey lawful general order by consuming alcoholic beverages while underage )
         Article 121 (Wrongfully appropriat ion), $36.43 from a fe llow Marine on divers occasions
         Article 121 (Wrongful appropriation), personal checks from a fellow Marine b etween 20010512 and
20010619
         Article 123 ( Falsely made a personal check on an account of a fellow Marine payable to Little Caesers in the amount of $16.84 and $19.59 falsely bearing the signature(s) of another ) , 2 specifications
         Article 134 ( F alsely altered the date of birth on his Armed Forces Identification Card )
         Article 134 (Breaking restriction ) , 2 specifications
          Awarded : Susp ended:

SCM: SPCM: CC:



Retention Warning Counseling :

- 20010508 :       For your unsatisfactory behavior by disobeying the LOS Policy Memorandum 00-4 by driving a POV aboard Camp Johnson, Camp Lejeune, North Carolina. On 20010415 you were arrested by civilian authorities for speeding, eluding arrest and careless and reckless driving. Rules and regulations are made for a reason, to ensure that good order and discipline are maintained. This type of behavior is unacceptable and will not be tolerated. Conduct such as this is unbecoming of a Marine and is a direct conflict with good order and discipline. Due to your careless and reckless driving you could have either injured or killed yourself.

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
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, Article 92, Article 107 and Article 123 .



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

Applicant’s Issues

 1. Reenlistment opportunities.
2. Service benefits.
3. Youth at time of misconduct.
4. Death of father precipitated his misconduct.

Decision


 Date: 20 0 9 0218            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 s concerning and , regarding .
: ( ) . The Applicant contends his actions are mitigated by his youth at the time of 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 one retention warning and three NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 ( UA, f ailure to go to appointed place of duty); Article 92 (Disobeying a lawful order); Art icle 107 (False official statement); Article 121 (Larceny); Article 123 (Forgery); and Article 134 (Breaking restriction). 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 court - martial but opted instead to retain the Applicant on active duty. The Applicant subsequently went UA again for more than six months. Although the Applicant was not subjected to NJP or trial by court-martial for this offense, it was a serious offense which constituted the basis for which the Applicant was ultimately discharged. While the Applicant may feel his youth was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to his youth. The Applicant did not present any documentation or evidence supporting his claim his youth and immaturity were responsible for his misconduct. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.
: ( ) . The Applicant contends his misconduct was precipitated by the death of his father. The NDRB rejects the Applicant’s contention. The Applicant provides no documented information he informed his chain of command of family problems as a result of his father’s passing and did not receive the assistance, leave, or help he asked for. Additionally, the Applicant makes no mention of, nor provides documented proof, if he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel if needed, all provide services to members of the military, regardless of grade, in times of need. The NDRB 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

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