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USMC | DRB | 2009_Marine | MD0902227
Original file (MD0902227.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080923
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:         NONE              Active:  

Period of Service Under Review:
Date of Enlistment: 20010424     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040903      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 65
MOS: 6216
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):     

Periods of CONF :

NJP:
- 20011017 :       Article 86 (UA - failure to go)
         Article 92 (Violate d lawful order by wrongfully wearing civilian attire)
         Awarded: Suspended:

- 20030815 :      Article 86 (UA)
         Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20010913 :       For intentionally ta king alcoholic beverages into barracks room.

- 20020521 :       For your failure to obey MCO P1020.34F by wearing earrings.

- 20030603 :       For drunkenness, incapacitation for performance of duties

- 20030815 :       For UA , failed to report to appointed place of duty .

- 20030818 :       For UA failed to report to appointed place of duty

- 20040422 :       For processing for administrative separation for pattern of misconduct.

NDRB Documentary Review Conducted (date):        20070712
NDRB Documentary Review Docket Number:   MD06-01124
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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, Absence without leave, Article 91, Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer and Article 92 , Failure to obey order or regulation .



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

Applicant’s Issues

 1. The Applicant believes his d ischarge characterization was to o harsh and he was treated unfairly by his command.
2. Seeks p ost-s ervice conduct consideration .
3. Alcohol dependency contributed to and mitigated the Applicant’s misconduct.

Decision

 Date: 2010011 1          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .

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 evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings and non - judicial punishments ( ) for o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 (Unauthorized absence , 2 specifications), Article 92 (Failure to obey an order or regulation , 1 specificat ion) and Article 91 (Insubordinate conduct toward s a warrant officer, noncommissioned officer or petty officer , 1 specification ) . The Applicant also had a pre-service drug waiver for using marijuana approximately 28 times prior to entering the Marine Corps. Documentation of the Applicant’s acknowledgment of his complete understanding of the Marine Corps Policy Co ncerning Illegal Use of Drugs was not found in the record . Based on the offenses committed by the Applicant, command administratively processed for separation. When processed for administrative separation, the Applicant waived rights to consult with qualified coun sel, submit a written statement and request an administrative discharge board.

Discussion

 : ( ) . The Applicant contends that his discharge characterization was t oo harsh and he received unfair treatment by his command . 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 eviden ce submitted by the Applicant. The NDRB found that the volume and nature of the Applicant’s misconduct supported the discharge characterization assigned by his command. Further, the NDRB did not find credible evidence of inequitable treatment by the command. Violations of Article 91 and Article 92 are considered serious violations which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general cou r t-martial. The command did not pursue a punitive discharge, but in stead opted for a more lenient administrative discharge.

: ( ) . The Applicant desires the NDRB to consider his post-service conduct to gain a more thorough understanding of the Applicant’s performance and conduct during the period of service under review . Besides the Applicant’s DD F orm 293, the Applicant provided a personal statement, ch aracter references, resume, a performance evaluation from an employer, a Social Security income statement and a criminal background check for review. The Board determined the evidence of post service conduct was not sufficient to warrant an upgrade of his discharge characte rization. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Applicant could have produced additional evidence, as stated in the addendum , post-service conduct ; with the full understanding completion of these items alone does not guarantee an upgrade. The NDRB determined an upgrade would be inappropriate considering the length of service, the UCMJ violations involved and the limited post-service documentation provided.

: (Decisional) ( ) . The Applicant contends his a lcohol dependency contributed to and mitigated his misconduct of record. The record reflects that the Applicant successfully completed four weeks of outpatient treatment for alcohol dependency while in the Marine Corps. T he NDRB determined that the Applicant’s alcohol d id not serve as mitigation to the numerous infractions with in his record.

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 .


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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