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USMC | DRB | 2009_Marine | MD0901900
Original file (MD0901900.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090624
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)       19900216 - 19900416     Active:            19900417 - 19931217

Period of Service Under Review:
Date of Current Enlistment: 19931218     Age at Enlistment:
Period of E nlistment : Years 9 Months
Date of Discharge: 19970828      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 11 D a y ( s )
Education Level:        AFQT: 59
MOS: 2532/2531
Proficiency/Conduct M arks (# of occasions): 1.0 ( ) / 1.0 ( )      Fitness R eports:

Awards and Decorations ( per DD 214):      (1) (4) (1) CoC MM (2)

Periods of CONF :

NJP:

- 19970429 :      Article (UA from appointed place of duty on 0930-1430, 19970425)
         Awarded: Suspended:


- 19970514 :      Article (UA from appointed place of duty on 1145, 19970429-0759, 19970430)
         Article 90 (Failure to obey order or regulation - directed to report to the RSS)
         Awarded: Suspended:

- 19970711 :      Article (UA 0801-1800, 19970626)
         Article (Failure to obey an order or regulation - directed to report to the RS HQ in uniform)
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 19940104 :       For failure to exercise sound judgment in dealing with weapons resulting in your being relieved as Sergeant of the Guard.


- 19960711 :       For financial irresponsibility for failure to maintain sufficient funds for payment on a check in the amount of $472.00.

- 19970429 :       For being UA from appointed place of duty. Being a Marine NCO you know that anything you do within the Marine Corps, you fall under the Articles of the UCMJ and are held responsible for your actions.

- 19970514 :       For being UA from your appointed place of duty, and for failing to obey direct orders from the Commanding Officer and Sergeant Major. These offenses are very serious in nature and will not be tolerated.

- 19970515 :       For UA from your appointed place of duty and refused to get into the uniform of the day. You further refused to acknowledge your rank and refused to ever wear the Marine Corps uniform again, by acknowledging your current status in the Masons being only known as 32 degree.

- 19970711 :       For being UA from appointed place of duty, and for failing to obey direct orders from the Commanding Officer. These offenses are very serious in nature and will not be tolerated.

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 900417 UNTIL 931217 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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 desires to reenlist in the military.
2. The Applicant had problems with the recruiting practices being used at his station.
3. Post-service .

Decision


 Date: 20 10 0713            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. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 (Unauthorized absence , 3 specifications) and Article 90 (Willfully disobeying the lawful order of a superior commissioned officer, 2 specifications). Based on the offenses committed by the Applicant, command administratively processed for separation . When notified of a dministrative separation processing , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant desires to reenlist in the military . 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.
: (Decisional) ( ) . The Applicant contends his military record was good prior to beginning recruiting duty. He states he had problems with the recruiting practices being used at his station. The NDRB noted the Applicant had received an adverse fitness report, for the period August 1993 to February 1994, due to two incidents involving unsafe weapons practices. T he Applicant provided no evidence of any kind to substantiate his contention that recruiting practices at his recruiting station were irregular in any way, or somehow mitigated his misconduct of record. The record shows the Applicant refused to perform his duties as a recruite r because it was now against his beliefs , as a 32 nd degree Mason, to serve in, or recruit for , the military. The Applicant refused t o obey the orders of the staff non-commissioned officers and commissioned officers appointed over him to return to his recruiting duties. The Applicant was also in an unauth orized absence status on at least four occasions , refused to appear in the proper uniform and was counseled for financial irresponsibility . The record reflected willful, unmitigated and repeated misconduct. An upgrade would be inappropriate.

: (Decisional) ( ) . The Applicant requested that the NDRB consider post service conduct as a basis for a more thorough understanding of her performance and conduct during the period of service under review. The Applicant submitted documentation verifying steady employment as a fire fighter, awards and certificates of appreciation for achievement at work and in support of the community. The NDRB applauds the Applicant’s post-service efforts and achievements. However, documentation of those efforts need s to be more encompassing. The Applicant c ould provide documentation that could include but is not limited to: letters of personal reference ; verifiable employment record; evidence of a drug - free lifestyle; certification of non-involvement with civil authorities ; evidence of financial stability (home ownership/home rental history, credit card payments); college transcripts; documentation of community/church service ; and marriage and children’s birth certificates, if applicable. The Applicant should be aware that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case - by - case basis.

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 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

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