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USMC | DRB | 2009_Marine | MD0902484
Original file (MD0902484.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090911
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)       20020103 - 20020122     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020123     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040220      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 42
MOS: 1341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20020724 :       Article 86 (UA/AWOL, 1630, 20020719, having been place on bed rest, absent until 0800, 20020720)
         Article 91 (Disobeyed a direct order, to stay in his room for bed rest)
         Awarded : Susp ended:

- 20021213 :       Article 91 (Insubordinate conduct toward a noncommissioned officer), 2 specifications
         Article 92 ( Failure to obey a lawful order )
         Awarded : Susp ended:

- 20030617 :       Article 91 (Insubordinate conduct toward a Staff Noncommissioned Officer)
         Article 134 ( Drunk and disorderly)
         Awarded : Susp ended:

- 20031112 :       Article 86 (UA 0800, 20031108 from appointed place of duty)
         Article 112 (Found drunk in the rack after being apprehended from UA at formation)
         Article 91 (Disrespectful in language toward CWO3)
         Article 91 (Disrespectful to SGT)
         Awarded : Susp ended:

SCM:

SPCM:

CC:


Retention Warning Counseling :

- 20030603 :       For violation of Article 92, Failure to obey squadron order and Article 117, Provoking speeches or gestures and again in April 2003 Article 91, Insubordinate conduct toward a Staff Noncommissioned Officer and Article 134, Drunk and disorderly conduct.

- 20030912 :       For multiple violation s of the UCMJ, Article 91, Repeated insubordinate conduct and disrespect toward NCOs and SNCOs, Article 92, Repeated offenses of disobeying orders, Article 86, Repeated UA, Article 117, Provoking speeches and gestures, Article 134, Drunk and disorderly conduct.

- 20030912 :       For being drunk and disrespectful to an NCO while at the barracks.

- 20031201 :       For conviction of articles 86, 91, 112, 117, and 134 of the UCMJ at NJP on 20020724; 20021212; 20030617 and 20031112.

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 .       Decisional issue : Applicant seeks upgrade to his characterization of service from Under Other Than Honorable Conditions to Honorable. Applicant contends that his service was honorable until he suffered a heatstroke ; thereafter he was unable to control his conduct.

Decision

Date: 20 10 0901            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 Board complete d a thorough review of the circumstances that l ed to discharge , and the discharge process , to ensure the Applicant ’ s 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 following Articles of the Uniform Code of Military Justice (UCMJ):

•         Article 86 ( Unauthorized Absence , 2 specifications: (1) absent without leave and (2) absent from appointed place of duty ),
•         Article 91 ( Insubordinate Conduct, 5 specifications: insubordinate conduct to Staff Noncommissioned Officers, Non - Commissioned Officers, and disrespectful language to a CWO3 ),
•         Article 92 ( Failure to obey a lawful order or regulation , 1 specification),
•         Article 112 ( Drunk on Duty , 1 specification ) and,
•         Article 134 (Drunk and Disorderly , 1 specification) .

In addition to the extensive in- service misconduct, the Applicant’s record of enlistment was marred with 2 waivers for enlistment , specifically , pre-service drug use (marijuana) and a civilian conviction for Driving Under the Influence of Alcohol.

The NDRB reviewed the Applicant’s administrative separation package . When notified of a dministrative separation processing using the procedure, the Applicant exercised right to consult with a qualified counsel and waived his right to submit a written statement or request an administrative board hearing.

Besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review. The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “ which substantiate or relate directly to your issues in Item 6” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct. However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.
: (Decisional) ( ) . The Applicant contends that a case of heatstroke and the resulting damages to him internally m itigate his misconduct. While he may contend that this injury was the underlying cause of his misconduct, his service record , coupled with his pre-service , waivered conduct, clearly reflect a n existing, willful , pattern of misconduct , demonstrating that he was unfit for continued service.

The Applicant’s record of service is marred by multiple violations of the UCMJ . Although the Applicant’s service record only reflects 4 NJPs over a 16 - month period, each individual NJP conducted by the command was a collective administrative handling of multiple acts of misconduct that occurred throughout the intervening periods. Violations of Articles 91, 92, 112, and 134 are serious offenses , punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. In the Applicant’s case, the command did not pursue a punitive discharge (i.e., Bad Conduct or Dishonorable) , but instead opted for the more lenient administrative separation process with a characterization of service of Under Other than Honorable Conditions.

Prior to any separation decision regarding the Applicant’s misconduct, the command referred him for alcohol screening and treatment. The Applicant was diagnosed as alcohol abusive (Axis I – 305.00 per DSM-IV) and referred to a 30 - day inpatient treatment facility. While there, the Applicant refused continued treatment and was returned to his command with a recommendation for administrative separation processing due to Alcohol Rehabilitation Failure, per the MARCORSEPMAN, paragraph 6209. Due to chronic misconduct, disrespect , attitude problems, and alcohol abuse, the command further directed a Mental Health Evaluation . The Appropriately Credentialed Mental Health Care provider diagnosed the Applicant with an Axis-I Adjustment Disorder ( 309.4 and 305.00, DSM-IV) with an Axis II personality Disorder, Long Standing (301.9, DSM–IV) , and further recommended expeditious separation. Pursuant to the Marine Corps Separation or Retirement Manual (MARCORSEPMAN - paragraph 6203.3 ) , members may be processed for separation based on a mental health professional's clinical diagnosis of a personality disorder when the disorder is so severe that one's ability to function effectively and perform their duties is significantly impaired, and the individual poses a threat to safety or well being of themselves or others. Additionally, s eparation for personality disorder is not appropriate when separation is warranted for any other reason (e. g., member meets minimum criteria for misconduct processing).

The record of evidence reflects the Applicant met the requirements for processing by means of: (1) Convenience of the Government (Personality Disorder) ; (2) Misconduct (Pattern of Misconduct) ; and (3) Alcohol Rehabilitation Failure . T he Applicant was notified , in writing , of administrative separation proc e e d ing s for all three of the aforementioned narrative reasons for separation. When a member ’ s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An Under Other than Honorable Conditions discharge 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 General Court Martial Convening Authority affirmed all three reasons for separation, directed a characterization of service of Under Other than Honorable Conditions due to significant negative aspects of conduct , and further directed that the primary basis for separation reporting was Misconduct, Due to a Pattern of Misconduct.

The evidence of record does not demonstrate the Applicant was not responsible for his conduct , or that he should not be held accountable for his actions. By a unanimous vote of 5-0, the NDRB 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 his 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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