Upgrade.Vet

USMC | DRB | 2009_Marine | MD0901178

Original file (MD0901178.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090331

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: C ONV. OF GOVERNMENT

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20030417 - 20030601     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030602     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060411      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 31
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoA LOA

Periods of UA : 20040119-2004012 0 (2 days )

NJP:
- 20040509 :      Article 91 ( Disrespectful in language )
         Article 92 ( Failure to obey)
         Awarded: Suspended:

- 20040422 :      Article 86 (UA )
         Article 92 (Failu re to obey) , 3 specifications
         Awarded : Susp ended:

- 20050823 :       Article 91 ( Disrespectful to a NCO ) , 2 specifications
         Article 92 (Failu r e to obey)
         Awarded : Susp ended:

SCM:

- 20051209 :      Article 128 (Assault)
         Sentence : (20051209-20060101 (23 days) Suspended

SPCM:

CC:

Retention Warning Counseling :

- UNDATED : For NJP held 20040509
- UNDATED: For underage drinking, drinking in barracks, fighting, destruction of government property.
- 20050519: For malingering
- 20050829: For NJP held on 20050823

Administrative Corrections to the Applicant’s DD 214

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

         “ MARCORSEPMAN 6210.3 ”

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 86 , 91, 92 .

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

Applicant’s Issues

1. Alcohol dependence affected Applicant’s ability to serve
2. Applicant was a good combat Marine, but had trouble integrating back into garrison
3. Consider Applicant’s service in combat
4. Post service. Applicant has had no trouble with alcohol since discharge

Decision

Date: 20 0 9 1105 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 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 6105 counseling warnings ; for o f the Uniform Code of Mili tary Justice (UCMJ): Article 91 (Insubordinate conduct, 3 specifications), Article 92 (Failure to obey an order of regulation, 5 specifications), and Article 86 (Absence without leave, not more than 3 days, surrendered, 1 specification) ; and for of the UCMJ: Article 128 (Assault, 1 specification ). Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified for a dministrative s eparation p rocessing, the Applicant waived rights to consult with qualified counsel, submit a written statement, and request an a dministrative b oard .

: (Decisional) ( ) . The Applicant contends that alcohol dependence a ffected his ability to serve and mitigates his misconduct. The Applicant was diagnosed as alcohol dependent and completed intensive outpatient treatment in October of 2005. While the Applicant may feel that his al cohol dependence mitigates his misconduct, a lcohol consumption is never an acceptable excuse for misconduct or poor judgment. The record reflects repeated and willful misconduct . While alcohol was a factor in many of these violations, the Applicant was clearly responsible for his actions. Violations of Articles 91, 92 and 128 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 for the more lenient administrative discharge .

: (Decisional) ( ) . The Applicant contends that he was a good combat Marine, but had trouble integrating back into garrison life. He also contends that the NDRB should grant an upgrade due to his honorable service in combat. The record reflects that the Applicant se rved with distinction , earning the Combat Action Ribbon and a Certificate of Commendation while serving in Fallujah, Iraq . While the NDRB greatly respects the Applicant’s service in combat, there is no evidence indicating that his service was so meritorious as to completely mitigate his subsequent behavior. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was appropriate .

: (Decisional) ( ) . The Applicant contends that he has had no problems with alcohol since discharge and wishes for the board to consider his performance and conduct during the period of service under review in this light. T he Applicant submitted no documentation or evidence to support t his contention , despite being encouraged to do so in correspondence from the NDRB. To warrant an upgrade , the Applicant’s post - service efforts need to be more encompassing. The Applicant is referred to the Addendum, P ost - service C onduct regarding this issue . The Board determined the characterization of service received was appropriate consid ering the UCMJ violations in volved and the lack of evidence submitted concerning this issue.

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 until 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 vetera ns 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 d ischarge 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 n aval 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 s (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

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USMC | DRB | 2009_Marine | MD0901178

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