Search Decisions

Decision Text

USMC | DRB | 2009_Marine | MD0902329
Original file (MD0902329.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090818
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)       19780124 - 1978090 7     Active:   R 1978090 8 - 19810407 HON
        19810408-19841218 HON
         19 84 12 19 - 19871218 HON
         19871219-19930221 HON
Period of Service Under Review:
Date of Current Enlistment: 19930222     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19950726      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: NFIR
MOS: 0341/0369
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (x7) Pistol (x5) (x4) (x2) MM(x3) LoA(x 6 ) CoC(x3)

Periods of UA / CONF :

NJP:

SCM:

- 19950303 :      Article (Failure to obey order or regulation) , 3 specifications
         Article (False official statements)
         Article (Larceny)
         Article (Assault)
         Article (Wrongful soliciting to purchase stolen engine parts)
         Sentence : RIR E-5 60 days

SPCM:

CC:
-        1994: Convicted for driving under the influence of alcohol per his fitness report dated 19 December 1994.

Retention Warning Counseling :

- 19940415 :       For an alcohol related incident : O n 940401 at about 0100 you were stopped at the border check point on I-5 north bound.

- 19940419 :       For the following deficiencies: financial irresponsibility is that SNM issued a bad check to MWR.


Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
“MARCORSEPMAN ”
        
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 P1900.16D), 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 .

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 s 92, 107,121, 128, and 134 .


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

Applicant’s Issues
1. The U.S. Department of Veterans Affairs (VA) incorrectly lists his discharge as D ishonorable.
2. Wants his characterization changed to Uncharacterized.

Decision

 Date: 20 10 0902            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 did not identify any decisional issues to the Board. However, the Board did complete a thorough r eview of the circumstances that led to discharge and the discharge process to ensure his discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings; for of the UCMJ: Article 92 ( Failure to obey order or regulation , 3 specific ations: wrongfully borrow money from junior Marines, wrongfully operate a vehicle after driving priv i lege had been revoked, and wrongfully use his position as platoon sergeant to induce subordinates to loan him money), Article 107 (False official statement, made a false statement to a 1 st LT), Article 121 (Larceny, stealing engine parts, the property of another Marine), Article 128 (Assault, unlawfully grabbing [victim] around the neck and choking him), and Article 134 (Wrongfully soliciting a SSGT t o purchase stolen engine parts); and one civilian conviction for driving under the influence (DUI) of alcohol. Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived his rights to submit a written statement and request an administrative board , but elected to consult with a qualified counsel.
Issue 1 : (Nondecisional) The Applicant provided documentation that the VA characterized his service from 22 February 1993 to 26 July 1995 as “D ishonorable . ” The Applicant was discharged from the U.S. Marine Corps with an Under Other Than Honorable Conditions discharge for the period 22 February 1993 to 26 July 1995. D ecisions reached by the VA to determine if former servicemembers rate certain VA benefits do not effect previous discharge decisions made by the Naval service. The criteria used by the VA in determining whether a former servicemember is eligible for benefits is different than that used by the Marine Corps when determining a member’s discharge characterization. The NDRB is not authorized to change VA decisions. It is possible that the VA considers an Under Other Than Honorable Conditions discharge as being “Dishonorable” for their benefits purposes. The Applicant should confirm this with the VA.

Issue 2: (Decisional) ( ) . The Applicant requested his characterization of service be changed to Uncharacterized. The Applicant had more than 180 days of continuous active service and is not eligible for an Uncharacterized characterization of service. The NDRB determined the Applicant’s conduct as evidenced by his SCM was a significant departure from the conduct expected of members of the Naval Service . These violations usually result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge (i.e., Bad Conduct or Dishonorable) and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge of Under Other Than Honorable Conditions . The NDRB determined an upgrade would be inappropriate.

 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 is not eligible for a personal appearance hearing since fifteen years have elapsed from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraph titled Additional Review s .


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 | 2009_Marine | MD0902334

    Original file (MD0902334.rtf) Auto-classification: Denied

    The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB 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 . ” Additional Reviews : After a...

  • USMC | DRB | 2010_Marine | MD1000334

    Original file (MD1000334.rtf) Auto-classification: Denied

    The Applicant’s request for separation in lieu of trial by court-martial was approved, and he was separated with an Under Other Than Honorable Conditions discharge.The Applicant provided documentation that included promotion recommendations from a previous enlistment. 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. ” Additional Reviews :...

  • USMC | DRB | 2010_Marine | MD1000340

    Original file (MD1000340.rtf) Auto-classification: Denied

    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 Board did complete 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 of the UCMJ: Article 92,...

  • USMC | DRB | 2009_Marine | MD0901728

    Original file (MD0901728.rtf) Auto-classification: Denied

    Relief based on this issue is denied.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. ” Additional Reviews : After a document review has been...

  • USMC | DRB | 2011_Marine | MD1101547

    Original file (MD1101547.rtf) Auto-classification: Denied

    For reasons undetermined, the Applicant was not processed for administrative separation from the Marine Corps for Misconduct-Drug Abuse, which would normally result in an Under Other Than Honorable Conditions discharge. Therefore, in accordance with the MARCORSEPMAN, the awarded characterization of service shall HONORABLE and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE. ” Additional Reviews : After a document review has been conducted, former...

  • USMC | DRB | 2010_Marine | MD1000277

    Original file (MD1000277.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT ,...

  • USMC | DRB | 2014_Marine | MD1400454

    Original file (MD1400454.rtf) Auto-classification: Denied

    The Administrative Separation Board determined by majority vote that the preponderance of evidence supported separation by reason of a Pattern of Misconduct and Unsatisfactory Performance, and recommended that the Applicant be separated Under Other Than Honorable Conditions. Relief denied.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...

  • USMC | DRB | 2015_Marine | MD1500629

    Original file (MD1500629.rtf) Auto-classification: Denied

    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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received...

  • USMC | DRB | 2010_Marine | MD1002044

    Original file (MD1002044.rtf) Auto-classification: Denied

    The Applicant’s service record documents that he completed the adjudicated period of confinement as awarded by the Special Court-Martial sentence. On 14 May 1996, the Applicant submitted a request for clemency to the Convening Authority; on 19 August, the Convening Authority acted on the request for clemency and reduced the sentence of confinement for six years to a period of four years. Having conducted a detailed review of both the records of trial by Special and by General Court-Martial...

  • USMC | DRB | 2010_Marine | MD1001068

    Original file (MD1001068.rtf) Auto-classification: Denied

    The evidence of record documents that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a Bad Conduct Discharge, as adjudged, was warranted. During his current enlistment period, the Applicant was referred to trial by Special Court-Martial for the illegal use of drugs in violation of Article 112(a) of the UCMJ and for violation of Article 107 for making false official statements to investigators.A jury panel comprised of enlisted and...