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USMC | DRB | 2009_Marine | MD0900740
Original file (MD0900740.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090210
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)       19981229 - 19990322     Active:   19990323 - 20021002

Period of Service Under Review:
Date of Enlistment: 20021003     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050728      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 29
MOS: 6672
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (1) (1) (2) CoC (2) MATB

Periods of UA / CONF :

NJP:
- 20050428 :       Article 128 ( Assault and Assault consummated by battery , against his wife ), 2 specifications
         Article 134 (Communication a threat to his wife and unlawful entry on personal property ), 2 specifications
          Awarded : Susp ended:

SCM: SPCM: CC:

Retention Warning Counseling :

- 20040504 :       For dereliction of duties in that you have failed to obtain the minimal standards in becoming an adequate instructor here at Marine Aviation Training Support Squadron One. From the period 20030207 through 20040429, you have failed on your responsibilities in learning and accomplishing the tools required in becoming an effective instructor. You have demonstrated a lackadaisical attitude on the podium and have done more harm than good with the students you’ve had the opportunity to instruct. Over the past six months you have exuded the unwillingness to be a proficient instructor and be a willing part of this command. This type of negative attitude is unacceptable and is not in keeping with the good order and discipline of the U. S. Marine Corps and will not be tolerated.

- 20050407 :       For my belligerent attitude and disrespectful behavior towards your First Sergeant during an unofficial counseling session. On 20050401 your First Sergeant was unofficially counseling you regarding your moral and financial obligations to support your family members. During this counseling session you became angry and verbally rebuked the information, and took a defensive stance regarding your obligation to pay you spouse monies in support of her and your children. You proceeded to get up and storm out of his office in anger without ever having been properly dismissed by the First Sergeant. This type of behavior is not incompliance with your Corps values of Honor, Courage and Commitment, and is not the


         type of behavior that a Sergeant of Marines should be participating in or condoning. Your actions were inexcusable and are not in keeping with good and discipline within your unit and will never be tolerated.

- 20050408 :       On 20050401 your First Sergeant gave you verbal instructions to clean your quarters inside and out to be done over the weekend. Since you and your family are maintaining separate households, you were also directed by your First Sergeant not to have any personal contact with your spouse unless initially notifying your chain of command. It was discovered by your immediate chain of command on 20050405 your task of cleaning your quarters was not completed, and on 20050406 your First Sergeant discovered that you had personal contact with your spouse without informing your chain of command. This type of behavior is not incompliance with your Corps values of Honor, Courage and Commitment, and is not the type of behavior expected of a career Marine of your caliber. Your actions were inexcusable and are not in keeping with good order and discipline and will never be tolerated.

- 20050427 :       Since arriving at MATSS-1 in November 2002 and through 1 April 2005, you have been given every opportunity and assistance to become a satisfactory instructor in the Aviation Logistics MOS 6672. Numerous times, you have exhibited unsatisfactory performance of your duties as an instructor, which resulted in undue stress to your Chain of Command. As an instructor and leader of junior Marines, you have an obligation to conduct yourself as a professional in order to set the example for those Marines to emulate. You have failed your obligations by allowing your personal issues, uncontrolled emotions, and unprofessional conduct prevents you from becoming a proficient instructor. Your constant requirement of supervision is unacceptable and will never be tolerated at this command.

- 20050705 :       For inability to make sound judgmental decisions regarding the repayment of your debts, and your inappropriate behavior when dealing with personnel outside of this command are unacceptable. On or about 20050617 this command was contacted by the station Combined Bachelor Quarters regarding a bill for more than $300.00 for which you have not rend ered payment. Your bill was based on your billing dates of 20050318-2005032 5 and again from 2005060 4 - 200506 17. You indicated to your First Sergeant that you were in a financial hardship, but your financial duress has been caused by your lack of self-control, lack of maturity, and your refusal to follow your chain of command’s advice. Your Chain of Command has advised you on more than one occasion that moving your family from your home of record back to Merid i an, MS to reside with you in the station CBO would be financially unsound; a move in which you knew quite well could cause you to become financially unstable, but you chose to do it against the advice of your command. Furthermore, on 20050624 the command received a letter from their accounting representatives over the phone. The letter stated that you used profane language and was so verbally unprofessional to the point in which it brought the representative to tears. Your actions were inexcusable and tears at the moral fiber of this unit, and directly forces individuals outside this command to pass negative judgment about our profess ion al ism, and our sense of responsibility. This type of behavior is not in compliance with your Corps values of Honor, Courage and Commitment, and is not the type of behavior expected of a Corporal of Marines.

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 :


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

Applicant’s Issues

 1. Reenlist.
2. Discharge unjust and wrong, it should have been a medical discharge due to his depression.

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

 : ( ) . 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 contends his discharge was unjust and that he suffers from a hereditary depression disorder and was promised a medical discharge. 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, and one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 128 (Assault and a ssault consummated by battery, 2 specifications) and Article 134 (Communicating a threat and unlawful entry, 2 specifications). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentenc e by a special or general court- martial. The command did not refer the Applicant for a court- martial but opted instead f or an administrative discharge based on well documented minor disciplinary infractions.

The record of evidence shows the Officer-in-Charge (OIC) , Naval Branch Medical Clinic, Meridian, noted the Applicant had marital and occupational problems and noncompliance with medical treatment , and diagnosed him with Adjustment Disorder and Personality Disorder Not Otherwise Specified with bord erline and avoidant traits . The OIC recommend ed the Applicant for “ immediate expeditious administrative separation…for convenience of the government by reason of severe personality disorder…” The OIC also noted the Applicant “may be held accountable for his actions and understands that delays in processing his separation may occur if he engages in behavior that necessitates disciplinary action ” . Subsequently , the Applicant was separated by reason s of Convenience of the Government due to Personality Disorder and Misconduct due to Minor Disciplinary Infractions. For the edification of the Applicant, s eparation for Personality Disorder can only be used if it is the only basis for separation. In this case, since the Applicant also met the requirements to be discharged for misconduct due to minor disciplinary infractions, the misconduct reason is designated as the primary basis for separation in spite of the existence of a personality disorder. Furthermore, if a member is serving in a pay grade of E-4 or above and being administratively separated with an Under Other Than Honorable Conditions characterization of service, the member will be reduced to pay grade E-3 and such reduction becomes effective upon separation. The NDRB determined the awarded c haracterization was appropriate, and an upgrade would be inappropriate.

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. Docum entation 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.

Besides the Applicant ’s statement on the DD Form 293, he provided only in-service documentation and his wife made a statement on the DD Form 293. 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 charact erization of service received, Under Other Tha n 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 obt ain additional evidence or post- service documentation he may wish to apply for a personal appearance. There a re 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

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. Paragraph 6203.3 CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

C . 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 .

D . 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 s of the UCMJ : Article 128 and Article 134.

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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