ex-, USMC

                  Current Discharge and Applicant’s Request

Application Received:  20090306
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)      20020612 - 20020611   Active:
20020612 - 20051213

Period of Service Under Review:
Date of Enlistment:  20051214     Age at Enlistment:
Period of Enlistment:   years
Date of Discharge:  20080912 Highest Rank:
Length of Service:    Year(s)    Month(s)  29  Day(s)
Education Level:       AFQT:  59
MOS:  6531
Proficiency/Conduct Marks (# of occasions):   (16) /  (16)    Fitness
Reports:

Awards and Decorations (per DD 214):    Rifle  Pistol   KDSM    PUC LoA

Periods of CONF:  20080131-20080204 (5 days)

NJP:
    - 20041007:  Article 86 (UA - rifle range)
            Awarded:     Suspended:


    - 20070831:  Article 90 (Assaulting and willfully disobeying superior
             commissioned officer)
      Article 91 (Insubordinate conduct toward warrant officer,
             noncommissioned officer, or petty officer)
      Article 92 (Failure to obey order or regulation)
            Awarded:     Suspended:

SCM:
    - 20080213:  Article 86 (UA 20080114-20080130 (17 days)
            Sentence:  RESTR FOR 40 days (20 days time served)

SPCM:

CC:

Retention Warning Counseling:

    - 20040624:  For unauthorized absence from his appointed place of duty
             on or about 20040611.

    - 20071204:  For my failure to complete the Residential Treatment
             Program.


    - 20080214:  For my summary court-martial.




                    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.

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 90 (Assaulting
and willfully disobeying superior commissioned officer), Article 91
(Insubordinate conduct toward noncommissioned officer) and Article 92
(Failure to obey order or regulation).

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

                             Applicant’s Issues

1.  Reenlistment opportunities
2.  Applicant went UA due to wife being pregnant and wanting to be removed
from active duty to the reserves.

                                  Decision

Date:  20090820        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 is reflected by two NJP’s and a Summary Court-
Martial (SCM) for violations of the Uniform Code of Military Justice,
Article 86 (unauthorized absence – 17 days), Article 90 (assaulting and
willfully disobeying superior commissioned officer), Article 91
(insubordinate conduct toward a noncommissioned officer) and Article 92
(failure to obey order or regulation).  These violations are considered to
be serious offenses which ultimately resulted in the command
administratively discharging the Applicant due to pattern of misconduct.
The Applicant did consult with qualified counsel, but waived his rights to
submit a written statement and request an administrative discharge board.

: (Non-decisional)  The NDRB has no jurisdiction over reenlistment,
reentry, or reinstatement into the Navy, Marine Corps, or any other service
within the Armed Forces, and 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.
Regulations limit the NDRB’s review to a determination of the propriety and
equity of the discharge.

:  (Decisional) ()  .  The Applicant contends that while on active duty he
requested to be closer to home during his spouse’s pregnancy.  He claims
his request was denied, so he went into an unauthorized absence status
after a scheduled leave period on 14 January 2008.  The Applicant called
his commanding officer (CO) on 18 January 2008 to directly let him know he
was safe and voice his displeasure on his current assignment.  The
Applicant then made his desire for separation known by telling his CO that
he wanted to be administratively separated (ADSEP’ed) or be reassigned to a
reserve unit close to his home in Texas.  During this conversation, the
Applicant’s CO noted that he did not want to ADSEP him at that time, and
offered to reassign him to a different unit aboard MCAS Miramar—as long as
he returned immediately.  The Applicant did not return until 31 January
2008 after 17 days in an unauthorized absence.

Additionally, the Applicant had a known alcohol problem that the command
attempted to address by sending him to inpatient dependency treatment
shortly before his unauthorized absence.  On the second week of treatment,
the Applicant voluntarily denied treatment and returned to the squadron as
a treatment failure.

The Applicant was sent before a SCM and he was later processed for ADSEP.
In the Board’s opinion, the CO tried to accommodate the Applicant’s various
requests, but the Applicant instead opted for a path to achieve a near-term
discharge, regardless of the characterization.  Relief denied.


Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service, service record entries, discharge process
and evidence submitted by the Applicant, the Board found
  By a unanimous vote of 5-0, the Board determined the characterization of
 service received, Under Other Than Honorable Conditions, and the narrative
     reason for the discharge, Misconduct, shall remain as issued.  The
  Applicant remains eligible for a personal appearance hearing for a period
 of fifteen years from the date of his discharge.  The Applicant is directed
  to the Addendum, specifically the paragraphs titled Reenlistment/RE-code
                          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 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.  There are veteran's organizations, such as the American
Legion and the Association of Service Disable Veterans, 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 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.

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 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 for 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 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 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.

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
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 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.

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