ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20090204
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)      20031117 - 20041101   Active:
      USMCR (DEP)      20050805 - 20050815

Period of Service Under Review:
Date of Enlistment:  20050816     Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  20081021 Highest Rank:
Length of Service:    Year(s)    Month(s)  06  Day(s)
Education Level:       AFQT:  55
MOS:  0151
Proficiency/Conduct Marks (# of occasions):   () /  ()   Fitness Reports:

Awards and Decorations (per DD 214):    Rifle  ICM   LoA

Periods of CONF:

NJP:

    - 20070511:  Article 86 (Failure to be at appointed place of duty 0730,
             20070404)
      Article 92 (Failure to obey a lawful order by not being at work on
             20070404)
      Awarded:     Suspended:

    - 20070813:  Article 86 (UA), 3 specifications (Absent from appointed
             place of duty (2x), 3 days)
      Article 92 (Failure to obey lawful order)
      Awarded:     Suspended:


SCM:

    - 20071108:  Article 86 (UA), 3 specifications (Missed restricted
             muster)
      Article 91 (Insubordinate conduct toward a Warrant Officer,
             Noncommissioned Officer, or Petty Officer, 3 specifications,
             out of uniform and wearing civilian attire)
      Sentence: RESTR       Suspended:

SPCM:       CC:

Retention Warning Counseling:

    - 20070320:  For your conduct and proficiency as a United States
             Marine.  As a United States Marine, you’re expected to act and
             carry yourself as such:  Coming into work each and everyday on
             time with a fresh haircut/shave, your uniform of the day is
             clean and squared away, and to follow your United States
             Marine Corps values.  Due to being on Humanitarian orders, if
             you are unable to make it to work you are required to muster
             in by phone to Gunnery Sergeant or any of the NCOs within the
             S-1 shop.  You have been provided with an S-1 recall roster
             that has contact numbers of all S-1’s personal home and cell
             phone numbers.  Be more responsible in following orders.


    - 20070320:  For absence without leave and failure to obey orders or
             regulations.  You failed to muster in with Gunnery Sergeant or
             any of the NCOs within the S-1 shop every morning.  If you do
             not have any scheduled appointments, you are expected to be
             into work at 0730.  You have failed to show up to work on
             several occasions.  This shows lack of discipline, is
             unacceptable and will not be tolerated.  You’ve been given an
             S-1 recall roster that has all S-1 personnel phone numbers.


    - 20070516:  For absence without leave to wit you failed to be at your
             appointed place of duty at the time prescribed and failure to
             obey order or regulation.  You were found guilty at NJP and as
             a result you will not be recommended for promotion for a
             period of 6 months.  Your actions will not be tolerated and is
             unbecoming of a United States Marine.


    - 20070518:  For violation of Art 134 (Dept, dishonorably failure to
             pay) of the UCMJ, specifically SNM was counseled by the chain
             of command to include SNOIC, IOC, Assistant Department Head,
             Department Head, and Squadron Sergeant Major concerning SNM’s
             financial irresponsibility and personal situations.


    - 20070722:  For concerning recent deficiencies: SNM communicated a
             verbal threat to his spouse on 22 July 07. SNM’s spouse filed
             a complaint, and SNM was place on a Military Protective Order
             (MPO) from 22 July 2007 to 26 August 2007.


    - 20070813:  For disrespecting a superior commissioned officer.
             Specifically, immediately following you NJP on 20070813 at
             approximately 1400 you pulled out your knife over 3 inches in
             blade length while the Legal Officer was reading you your
             appeal rights.   You were asked to put it away a second time
             while you were completing your UPB paperwork.  At
             approximately 1500, you lost your bearing by walking away from
             your OIC and mumbling under your breath while he was speaking
             to you in regard to visiting your wife.  Your SNCOIC
             instructed you to standby due to the fact that there is a
             military protective order between you and your wife and nobody
             was available to supervise your visit with her.  You showed
             disrespect in front of two Lance Corporals and a Private First
             Class in the S-1 office and exhibited poor judgment and loss
             of bearing.  This type of behavior is not acceptable nor will
             it be tolerated.


    - 20070815:  For knowingly buying stolen property.  Specifically,
             during June (date and time unknown) you paid an unknown male a
             sum of approximately $40 to buy a stolen computer that you
             knew belonged to another Marine in the squadron.  You admitted
             to several SNCOs and officers repeatedly, that you knew the
             computer was stolen.  You exhibited poor judgment, and this
             type of behavior is not acceptable nor will it be tolerated.


    - 20070823:  For falsifying an official statement.  Specifically, the
             week after your NJP 20070813 you submitted an appeal stating
             that the Legal Officer advised you that you had five business
             days vice calendar days to submit an appeal.  This appeal was
             read to you verbatim and only states five days.  It neither
             specifies nor were you told business days or calendar days.
             You chose not to submit an appeal at that time and then
             submitted the appeal ten calendar days late and eight business
             days late.


    - 20070823:  For disobeying a lawful order.  Specifically on or about
             20070815 you were contacted by your wife via phone.  You
             knowing and willingly accepted an unauthorized phone call thus
             violating a Military Protection Order.  SMN did not notify his
             current SNCOIC about this provision in his MPO thus received
             phone calls from his wife unsupervised.  This type of behavior
             is not acceptable nor will it be tolerated.


    - 20080904:  For unauthorized absence from HQ Squadron on 20080903.
             Upon arrival to your appointed place of duty you were found
             without a haircut or shave and in inappropriate civilian
             attire.






                    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 Representation:
      From Congress member:
                    Other Documentation:



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

                             Applicant’s Issues

1. Wants to reenlist to prove he can serve with excellence.
2. Discharge process took one year and two months which was longer than his
probation period.

                                  Decision

Date:  20090618        Location: Washington D.C.    Representation:

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

                                 Discussion

The NDRB, under its responsibility to examine the propriety and equity of
an Applicant’s discharge, is authorized to change the character of service
and the reason for discharge if such change is warranted.  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 ten NAMVC 118(11) (page 11)
warnings; two non-judicial punishments (NJPs) for violations of Uniform
Code of Military Justice (UCMJ) Article 86 (unauthorized absence (UA), 5
specifications for failure to be at appointed place of duty, 1
specification for UA of 3 days) and Article 92 (failure to obey lawful
order, 2 specifications for not being at work); and one summary court-
martial (SCM) for violations of UCMJ Article 86 (UA, 3 specifications for
missing restricted muster) and Article 91 (insubordinate conduct toward a
warrant officer, noncommissioned officer, or petty officer, 3
specifications for reporting to restriction muster in civilian attire and
not in the uniform of the day).  Based on the offenses committed by the
Applicant, his command administratively processed him for separation.  When
notified for administrative separation processing, the Applicant elected to
consult with qualified counsel, submit a written statement, and request an
administrative discharge board (ADB).  By a vote of 3-0, the ADB
recommended the Applicant’s separation from the Marine Corps, an Under
Other Than Honorable discharge, and that he not be retained in the
Individual Ready Reserve.

:  (Nondecisional) The NDRB has no jurisdiction over reenlistment, reentry,
or reinstatement into the Navy, Marine Corps, or any other branch of the
Armed Forces, and is not authorized to change a reenlistment (RE) code.
Only the Board for Correction of Naval Records (BCNR) can make changes to
reenlistment codes.  Additionally, the NDRB 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 reenlistment through
a recruiter.

:  (Decisional) ()  .  The Applicant contends his discharge took one year
and two months, which was longer than his probation period.  Per the Marine
Corps Separation and Retirement Manual, paragraph 6102.2, Separation with
Board Action, action should be completed within 50 working days after the
Marine received notification of separation.  In this case, the Applicant
was discharged approximately 11 months after being notified of separation.
During this time, the unit conducting the discharge was deploying to Iraq
and had to transfer the separation package and the Applicant to another
unit to continue the separation process.  While it is unfortunate the
separation process did not meet the processing time goal, failure to
complete an action within the prescribed time in no way bars separation or
affects characterization.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service,   record entries, and discharge process,
the Board found   Therefore, the awarded characterization of service shall
remain Under Other Than Honorable Conditions, and the narrative reason for
separation shall remain Misconduct.



The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of his discharge.  The Applicant is
directed to the Addendum, specifically the paragraphs titled Additional
Reviews, Automatic Upgrades, and Post-Service Conduct.

                          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.

                  ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  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 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.  There are veteran's organizations, such as the American
Legion and the Association of Service Disable Veterans, willing to provide
guidance to former service members in their efforts to obtain a discharge
upgrade.  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 Annex, Washington, DC
20370-5100 for further review.

Service Benefits:  The U.S Department of Veterans Affairs (VA) 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.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade
a discharge for the sole purpose of enhancing employment or educational
opportunities.  Regulations limit the NDRB’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 NDRB 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 for 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 or for any basis wherein an Other Than Honorable Discharge is
authorized, 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.

Post-Service Conduct:  The NDRB is authorized to consider post-service
factors in the recharacterization of a discharge.  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 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;
attendance or completion of higher education (official transcripts); 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.

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 NDRB 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