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USMC | DRB | 2009_Marine | MD0900739
Original file (MD0900739.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090211
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: RECRUITER MISCONDUCT/FRAUDULENT ENLISTMENT

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20041124 - 20050621     Active:  

Period of Service Under Review:
Date of Enlistment: 20050622     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080312      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 42
MOS: 1171
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle KDSM

NJP:
- 20060110 :       Article 121 (Wrongfully appropriated an X-Box which was the property of another Marine )
         Awarded: Suspended:

- 20060202 :      Article 92 (Violated ScolO P3000.1N by cheating on a Physical Fitness Test)
         Awarded : Susp ended:

- 200606 12 :       Article 92 ( Failure to obey order or regulation , 2 specifications: V iolated the liberty card policy and consuming alc ohol while under the age of 21)
         Awarded: Suspended:

- 20070820 :       Article 86 (UA (0800-091 5, 20070719 – without authority and with intent to miss field exercises)
         Article 107 (False official statement – deceive d a range coach by stating he had a dental appointment )
         Article 134 (Drunkenness - incapacitation)
         Awarded: Suspended:

SCM:

- 20071227 :       Art icle 92 (Failure to obey order or regulation , 2 specifications: W rongfully wearing civilian attire while on class “C” liberty risk and consuming liquor in the barracks.)
         Sentence : (20071203-20071226 (24 days))

SPCM: CC:






Retention Warning Counseling :

- 20051213 :       For violation of Article 107 for wrongfully making official entries in the UIC Duty logbook by signing the initials and signature of another person. Your actions display a lack of judgment, maturity, and professionalism. Such behavior is prejudicial to good order and discipline and will not be tolerated.

- 20060208 :       For your recent violation of Article(s) 92 and 121 for cheating on a physical fitness test and wrongful appropriation along with your lack of judgment and maturity.

- 20070612 :       For violation of Art icle 92. On 20070510 you wrongfully failed to obey Group Order 1050.2A, by allowing your liberty buddy, who is under the legal age of 20 years old to consume alcohol in your presence at a bar in Kin Town, near Camp Hansen, Okinawa Japan. PFC H . was in an intensive out-patient program for alcohol abuse and was ultimately removed from the program.

- 20070803 :       For your pattern of misconduct. Within the past 2 years you have been the subject of three NJPs : V iolation of Art icle 121 on 20060110 ; violation of Art icle 92 on 20060202 ; and violation of Art icle 92 on 20060612 , 2 specifications . You have also received 3 previous 6105 counseling ’s: on 20051213 for violation of Art icle 107) ; on 20060208 for violation of Art icle 92 and Article 121 ; and on 20070612 for violation of Art icle 92. Mostly recently on 20070719 you were in violation of Article 86 (UA) from your appointed place of duty (the rifle range) and lied about your whereabouts .

- 20080131 :       For receiving a 2.0 proficiency mark and a 2.0 conduct mark for 20080131 Semi-Annual Pro / Con occasion and understand my recent SCM and NJP were the basis.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MISCONDUCT ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
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 s 92 (Failure to obey order or regulation) , 107 (False official statement) , and 121 (Wrongful appropriation) .


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

Applicant’s Issues

 1. Be allowed to reenlist if desired.
2. Enlistment contract had several errors, was falsified , and not valid.
3 . Change Narrative Reason for Separation to Recruiter Misconduct/Fraudulent Enlistment .
4 . Post-service conduct.

Decision

Date : 20 0 9 0 507            Location: Washington D.C .         R epresentation :

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

 : ( ) . The Applicant’s father, acting as the Applicant’s representative, contends his son was not given the field for which he enlisted for and should be given the opportunity to reenlist, if desired. 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 s , regarding .

: ( ) . The Applicant’s father contends his son ’s enlist ment Statement of Understanding in the Marine Corps had several errors, was falsified , and therefore, not valid . The Applicant’s father states he and his wife witnessed their son signing for a guaranteed position in the administration field and not the construction/utility field. Therefore, the n arrative reason for s eparation should be changed to “ Recruiter Misconduct/Fraudulent Enlistment . ”

The NDRB determined the contention raised by the Applicant’s father is without merit and outside the parameters of the NDRB. The NDRB has no jurisdiction over enlistments into the service. The NDRB is designated and directed to make determinations as to whether discharges (and not enlistments) of former members of the Navy and Marine Corps should be changed and the nature of the change, if warranted. However, the Board did complete a thorough review of the Applicant’s enlistment and summarized it below. Finally, the Board reviewed the circumstances which led to the Applicant’s discharge and the discharge process to ensure his separation met the pertinent standards of equity and propriety.

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 6105 counseling warnings, four NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave); Article 92 (Failure to obey order or regulation, 3 specifications); Article 107 (False official statement); Article 121 (Wrongful appropriation of another Marine’s X-Box ); and Article 134 (Drunkenness); and one SCM for violation of Article 92 (Failure to obey order or regulation, 2 specifications). Violation of Article 92, Article 107, and Article 121 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 refer the Applicant to SC M and confined him for 24 days, but h e was not awarded a punitive discharge . Rather he was given an administrative discharge based on an established pattern of misconduct for numerous violations of the UCMJ.

The record of evidence shows The Record of Military Processing – Armed Forces of the United States (DD Form 1966/3 NOV 2003) , block 32.a. , Specific Option Program Enlisted For “9900 OPEN CONTRACT” and the Applicant initialed block 33 (no date listed) indicating he understood that he was not guaranteed any specific military skill or assignment. Th e Applicant had signed a Statement of Understanding (For Use With Open Contracts Only) on 22 November 2004 ; a copy was found with a diagonal line through it and the word “VOID” written above that line (no date identified when “voided”) . A second Statement


of Understanding was found in the record which the Applicant signed on 21 June 2005 with the Program Code “CM” and the Program Description of “Construction/Utilities” in blocks 4 and 4a, respectively. The Applicant’s father had provided evidence
he wrote to the Commanding General and Sergeant Major of the Marine Corps Recruiting Command regarding his son’s e nlistment contract and recruiter misconduct/fraudulent enlistment. The Head, Legislative Affairs G-3 Future Operations, responded to both requests and found the Applicant’s contract was binding. T he Military Entrance Processing Station (MEPS) Commander had also responded to a request by the father , but the Commander could not provide relief as requested by the Applicant’s father. In all the documentation provided by the father and in reviewing the Applicant’s record of service, the NDRB found no evidence of recruiter misconduct. The NDRB determined the proper reason for separation is “Misconduct” based on the Applicant’s well established history of violations of the UCMJ as represented by his NJPs and retention warnings. The awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issue 4 : ( ) . 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 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; attendance or completion of higher education (official transcripts); and documentation of alcohol non-dependency and 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.

Along with the DD Form 293, the Applicant provided two character references and evidence of employment and continuing education. While the Board commends the Applicant for getting involved with his church and returning to school, the Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization. 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. 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 based on the limited post-service documentation provided an upgrade would be inappropriate. Should the Applicant obtain additional evidence or post-service documentation he may wish to apply for a personal appearance. There are veteran's organizations, such as the American Legion, willing to provide guidance to 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 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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