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USMC | DRB | 2009_Marine | MD0900719
Original file (MD0900719.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090202
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)       20050331 - 20050906     Active:  

Period of Service Under Review:
 Date of Enlistment: 20050907     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080923      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 40
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF : UA 20070630-20071004 (97days)

NJP:
- 20080513 :      Article 86 (UA), 2 specifications
          Awarded: Suspended: for 6 months

- 20080407 :      Article 86 ( UA)
         Article 90 (Willfully disobey lawful order of a superior commissioned officer)
         Article 92 (Failure to obey order, regulation), 2 specifications
         Awarded: for 60 days Suspended:

- 20071025 :      Article 86 (UA, 2007 0630-20071004 (97 days )
         Awarded: Suspended: for 6 months

- 20061128 :      Article 134 (Speeding, cited traveling 70MPH in a 55MPH zone)
         Article 134 (Speeding, arrested and cited for traveling 70MPH in a 35MPH zone while passing a military police vehicle)
         Awarded: Suspended:

- 20060411 :      Article 92 (Dereliction of duties, by sleeping while on duty)
         Awarded: Suspended: for 6 months

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20080609 :       For the following deficiencies: Numerous infractions of UA and other violations.


- 20080516:      For the following misconduct, specifically, my recent Company level NJP for violation of Article 86 (X2) of the UCMJ held on 080513.
- 20080408:      For the following misconduct, specifically, m y recent Battalion level NJP fro violation of Article 86 and 92 (X2) of the UCMJ held 7 April, in that I was UA from duty operated a motor vehicle while my base driving privileges were revoked, and failed to report a motor vehicle accident.

- 20071030:      For the following misconduct , specifically, my recent Group level NJP for violation of Article 86 of the UCMJ held on 071025, in that you were UA from 070630 un til 071004.

- 20061128:      For the following misconduct, specifically, my recent Battalion level NJP for violation of Article 134 (X2) of the UCMJ held on 061128, in that you were convicted of speeding on two separate occasions , one for 70 in 55, the other for 70 in 35.

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 86 (UA), Article 90 (Willfully disobey lawful order of a superior commissioned officer), Article 92 (Failure to obey order, regulation), Article 92 (Dereliction of duties), Article 134 (Speeding, cited traveling 70MPH in a 55MPH zone), and Article 134 (Speeding, arrested and cited for traveling 70MPH in a 35MPH zone while passing a military police vehicle).



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

Applicant’s Issues

 1. I gave the Marine Corps all that I could and feel that I deserve a general discharge.

Decision

 Date: 20 0 9 0430            Location: Washington D.C .         R epresentation :

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

 Issue 1 : ( ) . The Applicant contends he deserves to get a G eneral (Under Honorable Conditions) discharge because he gave all he could to the Marine Corps. 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 five retention warnings and five NJP’s for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA), 4 specifications and one of the UA’s was for 97 days; Article 90 (Willfully disobey lawful order of a superior commissioned officer); Article 92 (Failure to obey order, regulation); Article 92 (Dereliction of duties); Article 134 (Speeding, cited traveling 70 MPH in a 55 MPH zone) and Article 134 (Speeding, arrested and cited for traveling 70 MPH in a 35 MPH zone while passing a military police vehicle). 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 Applicant has requested an upgrade in his discharge characterization to “General (Under Honorable Conditions)”. For the edification of the Applicant, a “General (Under Honorable Conditions)” 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. An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. The Board determined the Applicant’s pattern of misconduct reflects a significant departure from the conduct expected from a U. S. Marine . The Applicant stated in his DD 293 Form he was going through personal issues and was given the opportunity to either continue to finish his contract or be discharged. He chose to be discharged. However, the record of evidence does not support the claim he was provided the offer to complete his contract. While the Applicant may believe he gave all he could to the Marine Corps, his 5 NJPs clearly substantiate a pattern of misconduct and warrant a discharge. The NDRB determined the awarded discharge was appropriate and an up grade would be inappropriate.

For the edification of the Applicant, t he 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.



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 their 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 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 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 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 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

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