Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0901600
Original file (MD0901600.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090519
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)       19940222 - 19940417     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19940418     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970723      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 98
MOS: 7051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:
- 19950120 :      Article 112 (Drunk on duty)
         Awarded: Suspended: Suspension vacated 19950120

- 19950912 :      Article (Disrespect in language towards Staff Noncommissioned Officer)
         Article (Failure to obey order or regulation )
         Awarded: CC for 30 days Suspended:

- 19970612:      Article 112a (Drug abuse, wrongful use of a controlled substance - marijuana)
         Awarded: FOP Suspended:

SCM: SPCM: CC:

Retention Warning Counseling :
- 19941031 :       For lack of self-discipline, and poor judgment, with a complete disregard for rules and regulations. Specifically, on 19941022 you were picked up by Memphis Police for a DUI.
- 19950120 :       For my alcohol related incident; specifically reporting to duty on 19950106 while under the influence of alcohol.

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 P1900.16E), effective
31 January 1997 until 31 August 2001.

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. The Applicant seeks an upgrade to enhance employment opportunities.
2. The Applicant believes his post-service conduct is worthy of consideration.            

Decision

 Date: 20 10 0304 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Disrespect in language towards Staff Noncommissioned Officer) , Article (Failure to obey order or regulation ) , Article 112 (Drunk on duty) and Article 112a (Drug abuse, wrongful use of a controlled substance - marijuana) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 20 February 1994 . Based on the Article 112a violation , processing for administ rative separation is mandatory. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, to submit a written statement and to request an administrative board .

: (Nondecisional) The Applicant seeks an upgrade to enhance employment 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.
: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration. The Applicant provided character references from his pastor and an elder parishioner; in addition to a police record check. The Applicant states he is attending college and has been drug and alcohol free for the past seven years, but did not provide any verifiable documents to substantiate his claim. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant should provide additional documentation which could include but not limited to: verifiable employment record /letter of recommendation from his employers; evidence of a drug/alcohol free life style (completion of rehab/proof he attended Narcotics Anonymous or AA meetings) evidence of financial stability (home ownership/home rental history, credit card payments); documentation of community /church service and if married, a marriage certificate. The Applicant could have produced additional evidence as stated in the Post-Service Conduc t paragraph in the Addendum ; with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate. 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 Additi onal Reviews, Employment/Educational Opportunities 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 Disable d American 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 their 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

Similar Decisions

  • USMC | DRB | 2008_Marine | MD0800540

    Original file (MD0800540.rtf) Auto-classification: Denied

    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 that Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until 30 Jan 97.B. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the...

  • USMC | DRB | 2007_Marine | MD0700041

    Original file (MD0700041.rtf) Auto-classification: Denied

    Record of service. Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.The Applicant’s service was marred by one retention warning, one nonjudicial punishment for Articles 117, 128, and 134, and a guilty finding and sentence at a Special Court-Martial for Articles 128 and 134. SJA review (date): Separation Authority (date): NOT FOUND IN RECORD Basis for discharge directed: NOT FOUND IN...

  • NAVY | DRB | 2010_Navy | ND1000583

    Original file (ND1000583.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends he was not given an opportunity to consult with counsel during separation proceedings.2. Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .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...

  • NAVY | DRB | 2009_Navy | ND0901265

    Original file (ND0901265.rtf) Auto-classification: Denied

    Withoutpost-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.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 Regulation/Law A. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing,...

  • NAVY | DRB | 2007_Navy | ND0700286

    Original file (ND0700286.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offense that he committed. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary...

  • NAVY | DRB | 2009_Navy | ND0901380

    Original file (ND0901380.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. By a vote of the Narrative Reason shall .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...

  • USMC | DRB | 2007_Marine | MD0700904

    Original file (MD0700904.rtf) Auto-classification: Denied

    Although not an excuse for misconduct, the NDRB noted that there was an inequity in the Applicant’s discharge action in that the punishment was too severe for the misconduct. ” 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. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades...

  • NAVY | DRB | 2009_Navy | ND0901855

    Original file (ND0901855.rtf) Auto-classification: Denied

    When notified of administrative separation processing using the administrative procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.Summary: Although the Applicant did not state any issues regarding equity or propriety for the Board to consider, the Board carefully examined his military record. After a thorough review of the available evidence, to include the Applicant’s summary of service, record...

  • USMC | DRB | 2007_Marine | MD0700362

    Original file (MD0700362.rtf) Auto-classification: Denied

    Clemency. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Summary of Service Prior Service: Inactive: USMCR (DEP)19950120 - 19950626 Period of Service Under Review: Date of Enlistment: 19950627Years Contracted:Date of Discharge:19970319Length of Service: 01 Yrs 08Mths23 DysLost Time:Days UA: 39 Days Confined: 55Education Level:...

  • USMC | DRB | 2008_Marine | MD0800828

    Original file (MD0800828.rtf) Auto-classification: Denied

    For example, the Applicant could have produced additional evidence as stated above to help substantiate his case as statements alone from the Applicant cannot be used as the sole justification for the Board to reach a clemency decision.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Court-Martial proceedings, Discharge Process and evidence submitted by the Applicant, the Board found clemency was not warranted and the...