Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900434
Original file (MD0900434.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081212
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)     19950217 - 19950312     Active:   19950313-19991013 HON

Period of Service Under Review:
Date of Enlistment: 19991014     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20030214      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 01 D a y ( s )
Education Level:        AFQT: 77
MOS: 6062
Proficiency/Conduct M arks (# of occasions): ( 14 ) / ( 14 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol (2) (2) (2) (3) MM

Periods of UA / CONF : NJP: SCM: SPCM: CC:

Retention Warning Counseling :

- 2000 0106 :       For failure to meet Marine Corps w eight s tandards (first count).
- 20020423:      For failure to maintain height and weight standards in accordance with MCO 6100.10b.
- 20020603:      For f ailure to maintain physical readiness in accordance with MCO 6100.3J. Specifically , your failure to the run portion of the Physical Fitness Test held on 8 April 2002.
- 20020703:      For violation of Article 91 ( I nsubordinate conduct) of the UCMJ. Specifically, your insubordinate conduct toward a GySgt during MALS -24 Physical Training on 19 J une 2002 . You willfully disobeyed the GySgt wh e n told to get into the safety vehicle after falling out of the formation run, you made physical contact with the GySgt, by pushing him out of the way and you were disrespectful in language.
- 20020819:      For f ailure to make progress on weight reduction. SNM has gained 3 pounds and 2% body fat since 25 April 20 02.
- 20020904:      For violation of Article 91 ( I nsubordinate conduct) of the UCMJ . S pecifically, insubordinate conduct toward a Marine SNCO on 19 Aug ust 2002 by willfully disobe ying a SSgt when you were told to tuck in your shirt. You were disrespectful in language and deportment by refusing to tell a SSgt who you were and what unit you were assigned to. You also told him to get out of your face.

- 20020916:      For failure to make progress on weight reduction. SNM has lose only 4 pounds and maintain the same body fat since 25 April 02.


- 20021118:      F or concerning the expiration of your 2 nd six month assignment to the Body Composition Program on 8 Oct ober 20 02. You received two page 11s during this 2 nd assignment informing you that you were failing t o make progress, providing you assistance and advising you that failure to make corrective action may result in administrative separation. Therefore, in accordance with MCO P1080.40c you are notified that you are being processed for administrative separation IAW MCO P1900.16 paragraph 6215 (Weight Control Failure)

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 6206, UNSATISFACTORY PERFORMANCE , 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 .




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

Applicant’s Issues

 1. Record of service; discharged base d on one incident in 95 months of honorable service.


Decision

 Date: 20 0 9 0320            Location: Washington D.C .         R epresentation :

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

 Issue 1 : ( ) . The Applicant contends his discharge should be upgraded based on his record of service which was good apart from a single period of 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 two retention warnings, one retention warnings for violation of the Uniform Code of Military Justice (UCMJ) , w hich were for two violations of Article 91 (Insubordinate conduct). Additionally, the Applicant had 6 counseling’s concerning his weight. The Applicant’s had problems complying with the Marine Corps height and weight requirements and struggled for approximately 2 years in an attempt to come within standards. However, the Applicant also became insubordinate with SNCO’s when confronted about issues regarding his weight and this occurred numerous times. The Board rejects the Applicant’s contention he had a single period of misconduct. While the command never referred the Applicant to a NJP or a SCM for his violation s of Article 91, he was administratively processed for unsatisfactory performance. The Applicant provided no documentation on his behalf and the NDRB determined the awarded discharge characterization was appropriate; an upgrade would be 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. 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.

Besides the Applicant DD Form 293, no additional documentation or information was provided by the Applicant. 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 lack of post service documentation provided an upgrade would be inappropriate.
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 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 | 2008_Marine | MD0800947

    Original file (MD0800947.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Record of service.3. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post service conduct mitigates the reason for the characterization of discharge.

  • USMC | DRB | 2008_Marine | MD0800820

    Original file (MD0800820.rtf) Auto-classification: Denied

    Vacated 20010307.SCMs: 1 20010518: Article 92 (Failure to obey order), 3specifications, Article 95 (Fleeing apprehension), Article 134 (Breaking restriction).Sentence - RIR (E2), FOP ($300 for 1 month), Confinement (29 days). If a former member has been discharged for more than 15 years, has already been granted 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...

  • USMC | DRB | 2008_Marine | MD0801074

    Original file (MD0801074.rtf) Auto-classification: Denied

    The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post service conduct mitigates the reason for the characterization of discharge. Again, 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...

  • USMC | DRB | 2008_Marine | MD0801516

    Original file (MD0801516.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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...

  • USMC | DRB | 2013_Marine | MD1301265

    Original file (MD1301265.rtf) Auto-classification: Denied

    ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. 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. Additionally, the NDRB has no authority to upgrade a...

  • USMC | DRB | 2011_Marine | MD1102088

    Original file (MD1102088.rtf) Auto-classification: Denied

    The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.During the Applicant’s 1 year, 5 months, and 17 days of service, he was found guilty of two serious...

  • NAVY | DRB | 2008_Navy | ND0801408

    Original file (ND0801408.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 conduct mitigates the reason for the characterization of discharge. However, the NDRB advises the Applicant to include the VA diagnosis as evidence in petitioning the Board of Corrections for Naval Records for an RE code change, or in requesting a waiver to reenter the...

  • USMC | DRB | 2009_Marine | MD0900755

    Original file (MD0900755.rtf) Auto-classification: Denied

    The ASB recommended, by a vote of 2-1, the Applicant should receive an “Under Other Than Honorable” conditions discharge.After a thorough review, the NDRB determined the Applicant’s medical condition was an underlying cause that contributed to his misconduct. 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...

  • USMC | DRB | 2012_Marine | MD1200885

    Original file (MD1200885.rtf) Auto-classification: Denied

    ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of 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. Additionally, the NDRB has no...

  • NAVY | DRB | 2008_Navy | ND0801534

    Original file (ND0801534.rtf) Auto-classification: Denied

    In the absence of more concrete evidence than the Applicant’s statement, the Board determined the discharge did not warrant an upgrade.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...