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USMC | DRB | 2009_Marine | MD0900438
Original file (MD0900438.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)     19980324 - 19981117     Active:  

Period of Service Under Review:
 Date of Enlistment: 19981118     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20021117      H ighest Rank: NFIR
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 49
MOS: 0621
Proficiency/Conduct M arks (# of occasions): 4.0 ( NFIR ) / 3.8 ( NFIR )      Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle LoA

Periods of UA / CONF :

NJP:
- 20000208 : Article 86 (UA ) 0000 -0700, 20000124 (7 hours)
Awarded: Suspended: 1 MONTH 15 DAYS

- 20010417 : Article 86 ( UA, f ai led to go at the time prescribed to appointed place of duty)
 Article 90 (Willfully disobeyed a lawful order from a superior commissioned officer)
 Awarded: Suspended:

- 20010725 : Article 86 ( UA, f ail ed to go at the time prescribed to appointed place of duty )
 Article 134 (Make and utter a certain check in the amount of $126.72 to the Navy Exchange)
Awarded: Suspended:

- 20011217 : Article 92 (Violate a lawful general order - wearing a earring ) , 2 specifications
 Awarded: Suspended:

- 2002 0912 : Article 86 ( UA, f ailed to go to appointed place of duty)
 Article 92 (Wearing an earring in his ear)
Awarded: Suspended:

- 20021010 : Article 134 (Consumed alcoholic beverages while on restriction)
 Awarded: Suspended:

SCM: SPCM: CC:




Retention Warning Counseling:

- 20000302 : For failure to adhere to Marine Corps Core values and follow the rules and regulations of the Armed Forces
 which resulted in your conviction at Company NJP.

- 20000829 : For lack of professionalism, leadership, and non-reliance to what is expected of a Marine, which has caused
you not to be promoted with your peers for the month of September 2002 as a result of a pending NJP.

- 20010406 : For driving a POV while under base suspension, making a false statement to superiors and unauthorized
absence. Specifically, you were seen driving your POV by PMO while in a suspended status; on 20010316
you made false statements to 1stLt B . , Gy S gt N . and Sgt M . that you ha d not been driving your POV; on
20010212, you were UA for 24 hours and never gave a courtesy call - you claim the vehicle you were
riding in broke down; on 20010318, due to irresponsibility, you lost your wallet and ID card, you were UA
for the loading of MEUEX gear. You have blatantly neglected orders and regulations.

- 20010727 : For multiple NJPs which were conducted on 20000209, 20010417 and 20010725 which establishes a
pattern of misconduct.

- 20011218 : For violating Article 92 (2 specifications) by wearing an earring. Your failure to adhere to orders and/or
r egulations demonstrates your lack of professionalism and non-reliance to what is expected of a Marine.

- 20020701 : For lack of professionalism, leadership, and non-reliance to what is expected of a Marine. Specifically,
during the past quarter, you have demonstrated poor work habits, poor personal appearance, a history of
being late and a lack of respect toward superiors. Furthermore, these circumstances have caused you not to
be promoted with your peers for the month of July 2002.

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 90 and Article 92 .


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

Applicant’s Issues

 1. Benefits for service-connected injury.
2. Record of service.

Decision


 Date: 20 0 9 0409            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 this Issue. The Applicant should be aware he may be eligible for treatment of service-connected medical conditions. He is advised to contact his local Department of Veteran Affair office for further information.
: ( ) . The Applicant contends he is entitled to a discharge upgrade based on 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 six retention warnings and six NJP ’ s for violations of the Uniform Code of Military Justice (UCMJ):
Article 86 (UA and UA, f ailure to go to appointed place of duty); Article 90 (Willfully disobeyed a lawful order from a superior commissioned officer); Article 92 (Disobeying a lawful order); Article 134 (Breaking restriction and m aking and uttering a worthless check). Violation of Article 90 or Article 92 is considered a serious offense 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 for an administrative discharge based on a well documented established pattern of misconduct. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved and an upgrade based on his record of service 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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