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USMC | DRB | 2009_Marine | MD0900664
Original file (MD0900664.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090130
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)       20010524 - 20011028     Active:  

Period of Service Under Review:
Date of Enlistment: 20011029     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040617      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 69
MOS: 0231
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoC

Periods of UA / CONF :

NJP:
- 20040529 :       Article 92 ( Disobey a lawful order)
         Awarded : Susp ended:

SCM: SPCM: CC:

ARREST:

- 2004051 3 :       Offense: Reckless driving and driving under the influence. Court date of 20040604

Retention Warning Counseling :

- 20040402 :       For your violation of MCO P6100.12 by failing to maintain your body composition standards or weight/body fat percentage. Your failure to obey and follow the rules and regulations is conduct inconsistent with the traditional good standards of good order and discipline. Your lack of discipline and judgment is conduct unacceptable and will not be tolerated.
- 20040529 :       For violation of Articles 92 and 111, specifically disobeying a lawful order by the DNCO to return to your room, because of you overindulgence in alcohol, also you operated your POV while intoxicated with a BAC of .17. Due to your overindulgence in alcohol and operating your POV at a reckless speed of 105 mph, you were involved in a single car accident. Your judgment could have resulted in you or some innocent person being fatally injured. Marines are expected to enforce the rules and regulations, not violating them. This type of behavior is inconsistent with the traditional good standards of good order and discipline. Your lack of discipline and judgment is conduct unacceptable and will not be tolerated.



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 6203.3 CONVENIENCE OF THE GOVERNMENT, 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 92 (Disobey a lawful order) .



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

Applicant’s Issues

 1. Battalion CO recommended a n “Honorable” discharge.
2. Record of service.
3 . Post-service conduct.
Decision

 Date: 20 0 9 0423            Location: Washington D.C .         R epresentation :

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

 Issue 1 -2 : ( ) . The Applicant contest his discharge should be upgrade to “Honorable” because i t was recommended from the B attalio n Commander and, until his depression set in, his record of service was superb . 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. Additionally, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. The Applicant’s service was marred by two retention warning s and one NJP, for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Disobey a lawful order). Furthermore, the Applicant was arrested by civilian authorities for reckless driving in excess speeds of 105 miles per hour, crashing into a jersey barrier and driving under the influence with a blood alcohol content of .173.

The Appl i cant received a “NOTIFICATION OF SEPARATION PROCEEDINGS” from the commanding officer which states in paragraph 3: The least favorable characterization of service which you may receive is a general (under honorable conditions) discharge. The Commanding Officers of the Battalion and Regiment did recommend an “Honorable” discharge for the Applicant. However, the Applicant needs to understand this recommendation from the command ing officer s w ere only a recommend ation and not a guarantee ; the Commanding General ha s the final determination on the awarded discharge characterization and directed a “General (Under Honorable Conditions)” discharge.

The Applicant was seen by competent medical authority on various occasions over a four months period, resulting in his diagnosis of Personality Disorder not otherwise specified. This is a condition characterized by impulsive behavior, disregard of authority, physical outbursts , and self-esteem. Psychiatrist from Mental Heath Department, Pearl Harbor Medical Clinic, found the Applicant to be accountable for his actions and should be treated as such . The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his failure to meet the standards of expected conduct for a U. S. Marine and his arrest by civilian authorities outweigh the positive aspects of his record. For the edification of the Applicant, a service member may be separated based on commission of a serious military or civilian offense when the offense warrants separation and the offense would warrant a punitive discharge. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. A service member may be processed for separat ion for the commission of a serious military or civil ian offense when the offense or a closely related offense is a violation of the UCMJ and warrant s a punitive discharge in accordance with the Manual for Court-Martial: A military or civilian conviction is not required for discharge under this provision but the offense must be substantiated by a preponderance of the evidence.

The Board determined the awarded discharge characterization was appropriate and a n upgrade to honorable would be inappropriate.

Issue 3 : ( ) . 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’s DD Form 293 and service record , the Applicant provided no post service documentation for review . 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. Should the Applicant feel his post service conduct becomes substantial enough to warrant a personal appearance, there are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

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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