Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0900846
Original file (MD0900846.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090225
Characterization of Service Received:
Narrative Reason for Discharge: DUE TO A PATTERN OF MISCONDUCT
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20010620 - 20010617     Active:  

Period of Service Under Review:
 Date of Enlistment: 20020618     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060201      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 52
MOS: 0651
Proficiency/Conduct M arks (# of occasions): 4.1 ( NFIR ) / 4.0 ( NFIR )      Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20040701 :      Article 111 (Drunken or reckless operation of a vehicle)
          Awarded: Suspended:

- 20050121 :      Article 134 (Disorderly conduct)
          Awarded: Suspended:

- 20050412 :      Article 92 (Failure to obey a lawful order), 2 specifications
         Article 86 (Failure to go to appointed place of duty), 4 specifications
          Awarded: Suspended:

- 20050815 :      Article 92 (Failure to obey a lawful order), 5 specifications
         Article 134 (Dishonorably failing to pay debts)
          Awarded: Suspended:

SCM:

SPCM:

CC:






Retention Warning Counseling:

- 20050105 :      For extension on Body Composition Program.

 - 20050121 :       For NJP for violation of UCMJ Article 134.

- 20050412 :      For NJP for violation of UCMJ Article 86 and Article 92.
- 20050818 :      For NJP for violation of UCMJ Article 92 and Article 134.
- 20050928 :      For unauthorized absence on 20050905 and 20050917 .

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, 111, and 134. .


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

Applicant’s Issues

 1. Education benefits.
2. Service benefits.
Decision


 Date: 20 0 9 521             Location: Washington D.C .         R epresentation :

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

 Issues 1-2 : ( ) . The Applicant contends he is entitled to a discharge upgrad e to use the GI Bill to further his education and to use other benefits which will allow him to provide a more stable environment for his family. 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 paragraphs concerning Employment/ Educational Opportunities and , regarding .
Although t he Applicant identif ied Issues in which the Board does not have the authority to change, the Board did complete a thorough review of the circumstances which led to his discharge and the discharge process to ensure his discharge 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 re tention warnings and four NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence); Article 92 (Failure to obey a lawful order); Article 111 (Drunken or reckless operation of a vehicle); Article 134 (Disorderly conduct); and Article 134 (Dishonorably failing to pay debts). 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 Board determined the charact erization of service received, Under Other Than Honorable Conditions , was an appropriate characterization considering the length of service and the UCMJ violations involved .

For the Applicant’s edification, 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 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. 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

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

Similar Decisions

  • NAVY | DRB | 2007_Navy | ND0700214

    Original file (ND0700214.rtf) Auto-classification: Denied

    The Applicant’s service was marred by four nonjudicial punishments and two retention warning for violations of UCMJ Articles 86 (unauthorized absence, 6 specifications), 87 (missing movement), 90 (willfully disobeying a superior commissioned officer), 91 (insubordinate conduct, 2 specifications), 92 (failure to obey, 3 specifications), 107 (false official statements), 111 (drunk operation of a motor vehicle), 112 (drunk on watch), and 134 (disorderly conduct and communicating a threat). ...

  • NAVY | DRB | 2010_Navy | ND1000221

    Original file (ND1000221.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Summary: After a thorough...

  • NAVY | DRB | 2008_Navy | ND0801194

    Original file (ND0801194.rtf) Auto-classification: Denied

    Sailor and the Board determined an upgrade would be inappropriate.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...

  • USMC | DRB | 2009_Marine | MD0900336

    Original file (MD0900336.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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...

  • USMC | DRB | 2008_Marine | MD0801960

    Original file (MD0801960.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall COURT-MARTIAL.Discussion :().The Applicant contends he deserves better than a “Bad Conduct” discharge after serving many years in the Marine Corps and taking part in Operation Iraqi Freedom in 2003. ” Additional Reviews : Subsequent to a document review, 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. If a former member has been discharged for...

  • NAVY | DRB | 2004_Navy | ND04-00868

    Original file (ND04-00868.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (2) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 19900628 - 19900912 COG Active: None Period of Service Under...

  • NAVY | DRB | 2007_Navy | ND0700131

    Original file (ND0700131.rtf) Auto-classification: Denied

    Discharge Improper2. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.

  • NAVY | DRB | 2007_Navy | ND0700773

    Original file (ND0700773.rtf) Auto-classification: Denied

    The Applicant’s service was marred by one retention warnings, the award of two nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized Absence), Article 91 (Insubordinate conduct toward a petty officer), Article 92 ( Failure to obey a lawful order or regulation), Article 107 (False official statement), Article 111 (Drunken or reckless operation of a vehicle), Article 134 ( Drunkenness), Article 134 (False or unauthorized pass...

  • NAVY | DRB | 2009_Navy | ND0900823

    Original file (ND0900823.rtf) Auto-classification: Denied

    The Board determined the characterization of service received, General (Under Honorable Conditions), was an appropriate characterization considering the length of service and the UCMJ violations involved, and without post-service documentation provided an upgrade would be inappropriate.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 Pertinent...

  • USMC | DRB | 2009_Marine | MD0900400

    Original file (MD0900400.rtf) Auto-classification: Denied

    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 Applicants statement on the DD Form 293 there was no post service documentation provided. After a thorough review of the available...