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USMC | DRB | 2009_Marine | MD0902123
Original file (MD0902123.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090730
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)       20061004 - 20061031     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20061101     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090217      H ighest Rank:
Length of Service : Y ea rs M on ths 17 D a ys
Education Level:        AFQT: 24
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle KDSM

Periods of UA / CONF :

NJP:
- 20070724 :      Article (Fail ure to obey order or regulation )
         Awarded: Suspended:

- 20070924 :      Article (Ins ubordinate conduct toward DNCO and ADNCO and several other NCO’s)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20081031 :      Article (I nsubordinate conduct toward NCO - 2 specifications )
         Article (Fail ure to obey order or regulation - 4 specifications )
         Article (False official statement to 1stSgt)
         Article (Drunk and disorderly conduct)
          Awarded: Suspended:

- 20081219 :      Article (Unauthorized absence)
         Article (Failure to obey order or regu lation - 3 specifications )
         Article (False official statement - 2 specifications )
         Awarded: Suspended:

SCM:    SPCM:   CC:

Retention Warning Counseling : 3
- 20080904 :       For being UA to platoon PT on 080820, found sleeping in your room.
- 20081031 :       For violation of Article 91(x2), Article 92(x4), Article 107, and Article 134.
- 20081219 :       For violation of Article s 86, 92(x3), and 107 (x2) .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

         “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 P1900.16F), 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. The Applicant contends her record of service was good until she was sexually assaulted , which led to heavy drinking and misconduct.   
Decision
Date: 20 10 0 812 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evide nce submitted by the Applicant. The Board did complete a thorough review of the circumstances that 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 three 6105 counseling warnings and for o f the Uniform C ode of Military Justice (UCMJ): Article (Unauthorized absence: failure to show up for platoon PT and was found sleeping in her room), Article (Insubordinate conduct toward NCO - 3 specifications: ), Article (Failure to obey order or regulation - 9 specifications : underage drinking (2x); not following liberty risk policy; breaking barracks orders by having sexual contact in barracks, sleeping in a male Marine’s room , and having visitors in the room after 2000; restriction violation, violated barracks order ), Article (False official statement - 3 specifications) , and Article (Drunk and disorderly conduct) . Additionally, she was subject to an adverse counseling regarding leaving her post during an exercise, drinking while on duty, indecent exposure, an attempt to urinate on government property, disobeying lawful orders, missing movement , and being assigned again to an alcohol drinking course. Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and to request an administrative board.

: (Decisional) ( ) . The Applicant contends her record of service was good until she was sexually assaulted, which led to heavy drinking, which in turn led to her misconduct. After reviewing the Applicant’s medical record, it was noted that she was having issues while at boot camp. It was also noted that the instructors said that she ha d an ongoing problem with authority and didn’t think she was going to complete training due to her lack of discipline/motivation. While at medical, she admitted that she overexaggerate d her symptoms, “hopeful that medical will find something to send her home.” After a thorough review, t he NDRB found only one very brief entry on 15 May 2010 in her medical record that pertained to the alleged sexual assault by her last command “MCT,” which she states was causing panic attacks . The NDRB can not make a determination as to whether the alleged sexual assault happened or not based on the lack of documentation. The Applicant appeared to have problems with authority during her time at boot camp and these issues continued throughout the rest of her service. The NDRB believes that the command tried to help the Applicant, but her continued destructive behavior ultimately led to her discharge from the Marine Corps. The NDRB determined that the Applicant’s discharge was warranted and proper. Relief denied.

Also, the Applicant incorrectly stated that she was awarded a Good Conduct Medal from her enlistment in the Marine Corps until 19 December 2008. This mistaken impression likely comes from the statement in Block 18 of her DD Form 214 that states “Good Conduct Medal Period Commences: 20081219.” This statement refers to the start of calculating time for a Good Conduct Medal and restarts after each incident of misconduct. The Applicant went to NJP for the last time on 19 December 2008. A Good Conduct Medal is awarded for three years of honorable service that is free of any NJPs. The Applicant served for 2 years, 3 months, 17 days and had four NJPs during that time.
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 Additional 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 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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