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USMC | DRB | 2009_Marine | MD0900999
Original file (MD0900999.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090310
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)       20020208 - 20020310     Active:  

Period of Service Under Review:
Date of Enlistment: 20020311     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20031208      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 31
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 20021126 :       Article 92 (Violate base order P5560.2K paragraph 4008 by driving under the influence)
         Article 111 ( D runken operation of a vehicle: BAC of .16%)
         Awarded : Susp ended:        

- 20030925 :       Article 91 ( Insubordinate conduct )
          Article 128 (Assault: 2 specifications )
         Awarded : LETTER OF Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20021126 :       For alcohol - related incident, specifically DUI , to include blood alcohol level of .16%.

- 20030819 :       For pattern of misconduct, unsatisfactory performance of duty ; specifically UA from work, constant tardiness and refusal to perform physical training.

- 20031010 :       For insubordinate conduct toward a noncommissioned officer and assault on a superior and noncommissioned officer.


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 .




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

Applicant’s Issues

 1. Applicant believes his discharge was too severe based on his misconduct.

Decision

Date : 20 0 9 0903            Location: Washington D.C .         R epresentation :

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Applicant’s record of service included 6105 counseling warnings and nonjudicial punishments (NJP’s) for o f the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct towards a Sergeant by telling him to “go F_ yourself and go F_ your mother”), Article 92 (Failure to obey an order regulation - to wit: B ase O rder P5560.2K about driving under the influence), Article 111 (Drunken operation of a vehicle: BAC of .16%) and Article 128 ( A ssault – 2 specifications: spitting on a LCpl and assault a Sgt). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified for administrative separation p rocessing, the Applicant elected to cons ult with qualified counsel , but waived his right to request an administrative b oard.

: (Decisional) ( ) . The Applicant contends his discharge was too severe based on his misconduct. Although the Applicant felt his misconduct was minor, the NDRB opined that his conduct warranted separation from the naval service in order to maintain proper order and discipline. The Applicant has had a history of alcohol - related incidents before and during his time in the Marine Corps. Prior to joining the Marine Corps ( July 1997 ), the Applicant was arrested for driving under the influence (DUI), which was reduced to reckless driving. The Applicant was again arrested in November 2002 for DUI, with a blood alcohol content of .16, while driving through the front gate of Camp Lejeune. The Applicant was seen by the substance abuse counselor and diagnosed as alcohol dependent, and participated in weekly meetings prior to his deployment to Iraq in early 2003.

Per annotations in his medical records, the Applicant went through d etoxification ( DT ) during the first two weeks of deployment and experienced numerous personal problems, to include several fights with personnel in his unit . During the war, the Applicant was denied access to his weapon because of his attitude (falling asleep during watch, general apathy ) . His weapon was returned upon the unit’s redeployment to Kuwait. The Applicant was transferred to another unit and continued to have numerous problems that resulted in him being charged with disrespect to a commissioned officer and noncommissioned officer. Again, his weapon and rounds were taken away and not returned.

 According to the post deployment health assessment (PDHA) form in the Applicant’s medical records, he was asked numerous questions about his experience while deployed. Some of the questions were: 7) Did you see anyone wounded, killed or dead during this deployment? 8) Were you engaged in direct combat where you discharged your weapon? 9) D uring this deployment, did you ever feel that you were in great danger of being killed? The Applicant answered “NO” to all of these questions . The NDRB noted numerous inconsistencies with the Applicant’s service and medical record entries regarding his time in Iraq and his mental health and that which he reported to V eteran ’ s A dministration personnel . The NDRB determined that the Applicant’s service and health records – vice information reported to other agencies – would guide the Board’s decisions. T he NDRB determined that the root cause of the Applicant ’s misconduct wa s the result of poor decision making , to include his abuse of alcohol, which plagued him before and during his time in the Marine Corps . Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and 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 Addition al Reviews, 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 at 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

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