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USMC | DRB | 2009_Marine | MD0902481
Original file (MD0902481.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090909
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)       20000118 - 20000626     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000628     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040205      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 68
MOS: 2847
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : 20031212 – 20031214 (2)

NJP:

- 20010329 :       Article 92 (Failure to comply with MPO presently in effect against him)
         Article 107 (False official statement)
         Awarded : Susp ended:

- 20020402 :       Article 86 (Failed to go at the time prescribed to morning formation at 1700, 20020402)
         Article 92 (Willfully disobeyed an order by SGT to go to formation 20020402)
         Awarded : RESTR FOP Susp ended: FOP

- 20021122 :       Article 91 (Throw service rifle on the deck and communicate a threat to SGT)
         Article 92 (Repeatedly disregard and disobey orders given by SGT)
         Article 128 (Involved in an alterca tion, while motioning as though he was going to strike SGT)
         Awarded : Susp ended:

- 20030220 :       Article 86 (Failed to go at time the prescribed to PT at 0600, 20030203)
         Article 86 (Failed to go at time the prescribed to Section Formation at 0800, 20030203)
         Article 86 (Failed to go at time the prescribed to PT at 0600, 20030204)
         Article 86 (Failed to go at time the prescribed to PT at 0545, 20030205)
         Article 86 (Failed to go at time the prescribed to Section Formation at 0800, 20030206)
         Article 86 (Failed to go at time the prescribed to PT at 0545, 20030210)
         Article 91 (Disrespectful toward SGT 20030211)
         Article 92 (Failed to obey an order to prevent making altercation with SGT 20030211)
         Awarded : RESTR EPD FOP Susp ended: FOP

- 20030605 :       Article 91 (Insubordinate conduct toward a Non-commissioned officer)
         Awarded : RESTR EPD Susp ended:


- 20030724 :       Article 86 (UA from work section 20030708)
         Article 134 (Failed to check in for restriction)
         Awarded : RESTR Susp ended:

- 20031218 :       Article 86 (UA 1600, 20031212 to 0900, 20031214)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20010329 :       For violation of Article 92 (Failure to comply with MPO presently in effect against SNM. Misconduct, violation of Article 107 (False Official Statement)

- 20010719 :       For misconduct violation of Article 86 (Unauthorized absence), 6 specifications

- 20020327 :       For violation of Article 86 (Unauthorized Absence on three different occasions)

- 20030220 :       For patte rn of misconduct (Violation of A rticle 86 Unauthorized Absence and Article 91 Disrespect toward a Non-Commissioned Officer)

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MISCONDUCT ”
         “ (2) 20031212-20031214 ”

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.       Nondecisional issue: Applicant seeks relief through a change in his re-enlistment code .
2.       Decisional issue: (Equity) Applicant asserts that his discharge characterization of service was inequitable to his service and that elements within the command did not want him to be promoted .

Decision

Date: 20 10 0909            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. T he Applicant identif ied one decisional issue to the Board. T he Board complete d a thorough review of the circumstances that led to discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 retention-counseling warnings and for o f the Uniform Code of Military Justice (UCMJ) , specifically :

•         Article 86 – 9 specifications ( 8 specifications of failure to go to appointed place of duty, 1 specification of absent without leave (2 days))
•         Article 91 – 2 specifications (1 specification of insubordinate conduct toward a s uperior Noncommissioned Officer and 1 specification of communicating a threat to a superior Noncommissioned Officer )
•         Article 92 – 4 specifications (Failure to obey an order or regulation)
•         Article 107 – 1 specification (False o fficial s tatement)
•         Article 128 – 1 specification (Assault)
•         Article 134 – 1 specification (Restriction breaking) .

Based on the offenses committed by the Applicant, C ommand administratively processed for separation from the service . When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement, or to request a hearing before an administrative discharge board. The NDRB had a copy of the Applicant’s administrative separation package as well as the Applicant ’ s acknowledgement of rights in response to the pending administrative separation. The Applicant provided no documentation to rebut the government’s presumption of regularity in the conduct of its affairs and no documentation regarding post service conduct.

: (Non -D ecisional) The Applicant seeks relief in the form of a change to his re-enlistment 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 B oard for C orrection of N aval R ecords 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 that he should have been discharged after 3 NJPs , but the command retained him due to his job - related proficiency. The Applicant states that h is record of service mitigates his accompanying misconduct and the resulting characterization of service should be General (Under Honorable Conditions) . Additionally, the Applicant asserts that his discharge characterization of service was inequitable to the quality of his service and that elements within the command did not want t o promote him.

 The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order and granted . Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the service. There is credible evidence in the record that the Applicant consistently violated the UCMJ and the corresponding s ervice values of honor, courage, and commitment. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he not be held accountable for his actions.

Despite a service member’s record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. A n administrative discharge is not punishment ; t he decision to separate administratively a service member is made independently of , and does not require , adjudication at court-martial or nonjudicial punishment. Furthermore, characterization of service is a description of the total service provided during the member’s enlistment . When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An U nder O ther T han H onorable C onditions characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s conduct during his period of service, which forms the primary basis for determining the character of that service, is tainted by four formal r etention-counseling warnings and seven NJP s for violations of the UCMJ : Articles 86, 91, 92 , 107, 128, and 134 . Violations of A rticles 91 , 92 , 107, and 128 of the UCMJ are serious offenses for which punitive discharge is authorized , if adjudged by a Special or General Court - Martial. In the Applicant ’ s case, t he command did not pursue punitive discharge options , but opted instead for the more lenient administrative discharge.

The Applicant implies the Separation Authority treated him unfairly . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that he was either wrongfully or improperly discharged. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Commanding Officer’s recommendation for separation is just that - a recommendation. The Separation Authority , in this case the Commanding General of the Second Marine Division, determines whether the evidence substantiated the allegations in the notification for separation . There is no provisional guarantee that a Marine will receive anything that a local Commanding Officer recommends.

The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, especially one of his grade and length of service and falls far short of what is required for an upgrade in the characterization of service. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was appropriate; 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 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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