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USMC | DRB | 2009_Marine | MD0902129
Original file (MD0902129.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090728
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)       19910823 - 19911120     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19911121     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19950415      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 51
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle MM NASA

Periods of CONF :

NJP:

- 19931103 :      Article 86 (UA 0420-0800, 19931027)
         Awarded: Suspended: Suspension vacated 19931221
- 19931221 :      Article 80 (Attempt)
          Article (Provoking speech and gestures)
         Article 134 (Disorderly conduct)
          Awarded: Suspended:

- 19941024 :      Article 111 (DUI) [ NFIR , extracted from Commanding Officer’s letter dated 19950130.]
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 19920825 :      Failed to attempt any portion of the helo dunker.

- 19930910 :      For financial irresponsibility by failing to maintain sufficient funds in his checking account and having a check in the amount of $35.00 being returned by MWR for NSF.

- 19930910 :      For domestic violence incident on 19 9 30803 between Applicant and his wife. What began as an argument led to a physical confrontation when they began to strike at each other.

- 19930913 :      For your discharge from Level III alcohol treatment on 19930607. Your failure to complete this program makes you eligible for admin separation.

- 19931129 :       For unsatisfactory personal appearance by showing up for Battalion formation and company commanders’ inspection needing a shave, boots polished and unserviceable rank insignia.

- 19931230 :      For frequent involvement with military authorities as evidenced by 5 6105 pg 11 entries since 19930910 and 2 NJP’s . Your conduct is not that which is expected of a Marine.

- 19941014 :      For misconduct as evident by your recent office hours.

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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective
27 June 1989 until 17 August 1995.

 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 contends his discharge characterization of service was inequitable as evidenced by his performance in more than three years of service.
2.       Applicant contends his discharge was improper due to family circumstances that were not properly addressed.

Decision

 Date: 20 10 1201            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 identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards 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 80 ( Attempt to shatter rear window of military police vehicle , 23 Nov 93 ) ; Article 86 ( Unauthorized absence, 0420-0800 on 27 Oct 93 ) ; Article 111 ( Drunken driving , 30 Mar 94 ); Article 117 (Provoking speech toward military police, 23 Nov 93); and Article 134 ( Disorderly conduct toward military police, 23 Nov 93). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . During the administrative separation processing, the Applicant was interviewed by his chain of command and asked if he desired to remain in service ; t he Applicant stated that he did not desire to be retained in the Marine Corps. Lastly, though not included in the service record, the Applicant provided documentation of his command’s referral of charge s for DUI to trial by special court - martial (SPCM), charges which were subsequently dropped by the trial judge due to inconsistencies and misleading information in the MP ’s witness testimony.

: Decisional) ( ) . The Applicant contends his discharge characterization of service was inequitable as evidenced by his performance in more than three years of service. Upon his administrative separation from service, the Applicant had served a total of three years and approximately five months in the Marine Corps. During this time, the Applicant received numerous counseling warnings to include: writing a bad check due to insufficient funds in his checking account; unsatisfactory appearance at company commander ’s personnel inspection; a domestic violence incident with his wife in base housing; Level III alcohol rehabilitation failure; and disorderly conduct with attempt to damage government property and provoking speech/gestures toward military police during his detainment at the installation main gate. Additionally, he received guilty findings at three separate NJPs for unauthorized absence, the aforementioned disorderly conduct with military police, and driving his personal vehicle under the influence of alcohol. Lastly, the s ervice record s indicate the Applicant’s proficiency and conduct markings averaged 3.9 and 3.8 respectively over eight reporting periods , marks which normally rate a less than honorable characterization of service upon discharge . An Under Other Than Honorable Conditions discharge is warranted when a service member’s conduct involving one or more acts or omissions constitute s a significant departure from the conduct expected of members of the Naval Service. Based solely on the documentary evidence within the service record, the Board determined the characterization of service at the time of discharge was equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was improper due to family circumstances that were not properly addressed. Prior to the emergence of his personal family related issues, the Applicant maintained a clean service record with a history of strong performance through approximately two years of active service, evidenced by his proficiency and conduct evaluations that reflected an average of 4.4 and 4.2 over five reporting periods . During the NDRB administrative hearing proceedings, the Board thoroughly reviewed the relevant factors and issues that affected the Applicant and his family during the period leading up to his administrative separation. Based on the evidence submitted to the Board and the testimony given during the hearing, the NDRB determined that significant personal issues existed prior to and at the time of the Applicant’s discharge. Though the Applicant was responsible for his actions and accountable for his misconduct, the Board determined that specific mitigating factors existed and determined that his administrative discharge, though technically proper, was not equitable.
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 the discharge was proper and equitable at the time of discharge. However, based on the existence of significant personal family issues out of the control of the Applicant and the relevant facts surrounding the Applicant’s discharge, the Board determined that substantial mitigating factors me rited upgrade to the Applicant’ s characterization of service. T herefore, the awarded characterization of service shall and the narrative reason for separation shall remain .


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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