ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20090304
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)      20000313 - 20000521   Active:        20000522
- 20031009

Period of Service Under Review:
Date of Enlistment:  20031010     Age at Enlistment:
Period of Enlistment:   Years   Months
Date of Discharge:  20061114 Highest Rank:
Length of Service:    Year(s)    Month(s)  05  Day(s)
Education Level:       AFQT:  56
MOS:  5811
Proficiency/Conduct Marks (# of occasions):   () /  ()   Fitness Reports:

Awards and Decorations (per DD 214):    Rifle  Pistol

Periods of UA/CONF:

NJP:

    - 20051018:  Article 92 (Failure to obey a lawful order or regulation)
      Awarded:     Suspended:    (Suspension vacated 20051115)


    - 20060629:  Article 92 (Failure to obey a lawful order or regulation)
      Article 107 (False official statement)
      Article 121 (Larceny and wrongful appropriation)
      Article 134 (Make and utter worthless checks)
      Article 134 (Obstructing justice)
      Awarded:     Suspended:   (Suspension vacated 20060713)


SCM:

    - 20050624:  Article 92 (Failure to obey a lawful order or regulation)
      Article 134 (General article)
      Sentence:

SPCM:            CC:

Retention Warning Counseling:


    - 20031212:  For failing to report your rifle range gear stolen or
             missing to your Chain of Command.
    - 20051130:  For violation of Articles 92, 107, and 134 of the UCMJ.
    - 20060731:  For his 3.9 conduct marks for the semi-annual period
             20060201-20060731.


            Administrative Corrections to the Applicant’s DD 214

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

        “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 2000522 UNTIL 20031009”

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 Representation:
      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.




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

                             Applicant’s Issues

1. His misconduct should not have changed his characterization based on his
record of service.

                                  Decision

Date:  20090706        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 reflects two NAMVC 118(11) (page 11)
warnings; two nonjudicial punishments (NJPs) for violations of the Uniform
Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order
or regulation, 2 specifications, one for having a 14 year old in his
bachelor enlisted quarters room and one for neglecting to pay $3000 to a
fellow Marine), Article 107 (False official statement, concerning a
Marine’s missing gear), Article 121 (Larceny and wrongful appropriation,
steal a Marine’s belonging valued about $3000), Article 134 (Make and utter
worthless checks, for $3000 to repay the Marine for stolen belongings) and
Article 134 (Obstructing justice, by impeding an informal investigation);
and one summary court martial (SCM) for violations of the UCMJ: Article 92
(Failure to obey a lawful order or regulation, using information technology
asset in an inappropriate manner and not for official military business)
and Article 134 (General article, transferring obscene images through
Microsoft Exchange Outlook).  Based on the offenses committed by the
Applicant,  command administratively processed  for separation. When
notified for Administrative Separation Processing, the Applicant waived
rights to consult with qualified counsel, submit a written statement, and
request an Administrative Board.

:  (Nondecisional) () .  The Applicant contends the actions that resulted
in his discharge should not have changed the characterization of service
based on his many achievements, and receiving an Honorable discharge will
change the quality of life for himself and his family during these hard
times. The Applicant’s Commanding Officer recommended a General (Under
Honorable Conditions) characterization, but the Separation Authority made
the final decision to discharge the Applicant with an Under Other Than
Honorable Conditions characterization. The Applicant provided copies of his
Gung Ho award and meritorious promotion to corporal.  However, these
achievements were received during his first enlistment, in which he was
discharged with an Honorable characterization. For the Applicant’s
information, each period of enlistment is an independent obligation and
characterization is determined for that specific period of time. The
Applicant provided no documentation of any achievements during his second
enlistment, which was marred by two NJPs and one SCM.  Statements alone are
not sufficient and without documentary evidence the Board cannot form a
basis of relief.  An Under Other Than Honorable Conditions discharge is
warranted when a member engages in conduct involving one or more acts or
omissions that constitute a significant departure from the conduct expected
of members of the Marine Corps.

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
and the narrative reason for separation shall remain .

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

                  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 of the Applicant’s 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 veterans organizations such as the
American Legion and the Association of Service Disable Veterans that are
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 NDRB.  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 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 is processed subsequently for an administrative
involuntary separation or is referred to a court martial for misconduct,
the disability evaluation is suspended 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
BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an
unfavorable discharge to be upgraded based solely on the passage of time or
good conduct 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
certificates (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
 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