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USMC | DRB | 2009_Marine | MD0900490
Original file (MD0900490.rtf) Auto-classification: Denied
ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081219
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)     19970117 - 19971005     Active:   19971006 - 20021009

Period of Service Under Review:
 Date of Enlistment: 20021010     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20051212      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 03 D a y ( s )
Education Level: NFIR    AFQT: NFIR
MOS: 6287
Proficiency/Conduct M arks (# of occasions): NFIR         Fitness Reports:

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

Periods of UA / CONF :

NJP:

- 20041012 : Article 90 (Willfully disobeyed a lawful order from a superior commissioned officer)
Article 91 (Disrespect toward a superior noncommissioned officer)
 Article 92 (Disobeying a lawful order)
 Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling:

- 20041012 :      For NJP for violations of Article 90, Article 91 and Article 92.

- 20050322 :      For loss of military record.

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:              

Related to Post-Service Period (cont):
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, Article 91 and Article 92 .

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

Applicant’s Issues

 1. Employment opportunities.
2. Did not have a pattern of misconduct.
2. NJP conviction was unjust.
3. Adverse fitness report was not accurate.
4. Record of 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 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 his discharge was improper because he did not have a “Pattern 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 one two retention warnings and one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 90 (Willfully disobeyed a lawful order from a superior commissioned officer); Article 91 (Disrespect toward a superior noncommissioned officer); and Article 92 (Disobeying a lawful order). 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 for an administrative discharge.

The NDRB rejects the Applicant’s contention because his record of service shows he did have the documented misconduct required to separate a Marine for a “Pattern of Misconduct.” As stated above the Applicant was given two retention warnings and one NJP during his second enlistment. For clarity, the pertinent section of Paragraph 6210.2 of the Marine Corps Separation and Retirement Manual is cited below:

         A minimum of TWO incidents occurring within one enlistment is required. Misconduct occurring in an extension of
 an enlistment is considered to be within one enlistment. The infractions may be minor or more serious. There must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. The misconduct need not have been the subject of NJP or military or civilian conviction.

The Applicant submitted the routing sheet used by the Commanding General’s staff as evidence to support his argument on this Issue . He specifically points to the Wing Staff Judge Advocate’s opinion that the Applicant’s case was weak and that it “barely met the minimum requirements for processing.” The NDRB determined the Applicant’s record of misconduct satisfied the standards required to process for separation for a “Pattern of Misconduct”; a change to the narrative reason for his discharge would be inappropriate. The NDRB also determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved; an upgrade would be inappropriate.
: ( ) . The Applicant contends his NJP conviction was unjust. The NDRB notes the Applicant already unsuccessfully appealed his NJP. The NDRB determined a n upgrade based on this Issue would be inappropriate.

: ( ) . The Applicant contends the adverse fitness reports he received were inaccurate. The NDRB notes the Applicant filed his rebuttal to the reports and these rebuttals are contained in the Applicant’s service record. The N DRB determined an upgrade based on this Issue would be inappropriate. The Applicant is advised to petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review of this issue.
: ( ) . The Applicant contends he is entitled to a discharge upgrade due to his record of service. Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. For the edification of the Applicant, a “General (Under Honorable Conditions)” discharge is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The NDRB determined characterization of service received, “General (Under Honorable Conditions)”, was appropriate given the Applicant’s service record; an upgrade would be inappropriate.

 The Applicant submitted numerous documents related to his record of service with a complete listing of the discrepancies noted by the Applicant to the NDRB for review . Except as discussed in the Issues enumerated above, the NDRB was unable to clearly determine further Issues to which the NDRB can respond in reviewing discharges. The Applicant should understand the authority of the NDRB extends only to reviewing an Applicant’s discharge. If the Applicant desires to amend documents in his service record he should petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100.

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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