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USMC | DRB | 2009_Marine | MD0902485
Original file (MD0902485.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)       19940329 - 19940425     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19940426     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980429      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 04 D a y ( s )
Education Level:        AFQT: 53
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol CoC LoA

Periods of CONF :

NJP:

- 19950602 :      Article (Absence without leave fail to go to time prescribed to Base Education Center on 19950412 – 19950414 and 1995 0417 – 19950418)
         Awarded: LETTER Suspended:

- 19970207 :      Article (Failure to obey order or regulation by consuming alcohol prior to duty 1630, 19970101)
         Article (General article – incapacitated for performance of duties 1630, 19970101)
         Awarded: CCU 7 DAYS Suspended: CCU 7 DAYS

- 19971114 :      Article (Absence without leave 0730, 19971027, appointed place of duty)
         Awarded: Suspended: NONE

SCM:

SPCM:

CC:









Retention Warning Counseling:

- 19951107 :      For lack of professionalism, integrity, esprit de corps, and judgment in disrespectful behavior towards your seniors on 19951019. Failure to obey a Corporal appointed over you on three separate occasions.

- 19961211 :      For violation of article 112, not fit to stand duty due to alcohol emitting from breath.

- 19970324 :       For derelict in duties as gate sentry 19970219 failing to inspect vehicles coming through post.

- 19980315 :      For drug related incident, tested positive for cocaine in urinalysis 19980309.

Administrative Corrections to the Applicant’s DD 214

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

         “ MARCORSEPMAN 1005 ”
          “ ”
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. Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 31 August 2001, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .
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 : (Equity/Propriety) Applicant contends enlisted personnel trying to establish a pattern of misconduct/bad behavior, which was not true, accused him falsely and that these actions improperly affected his discharge characterization of service determination at the completion of his obligated active service .

Decision

 Date: 20 10 090 9            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 provided no documentation for consideration in mitigation, extenuation, or to rebut the Board ’ s presumption of regularity in governmental affairs. T he Applicant did not identify any specific decisional issues to the Board , but inferred in his statement that his discharge characterization of service was inequitable because an enlisted member in the command was falsely accusing him and trying to establish a pattern of misconduct. T he Board complete d a thorough review of the circumstances that led to his discharge, and the discharge process , to ensure the discharge met the pertinent standards of both equity and propriety. The Applicant’s record of military service include d 6105 retention counseling warnings and for violation s o f the Uniform Code of Military Justice (UCMJ) . The Applicant ’ s violations include: (1) Article 86 ( Absent Without Leave , specifically - failure to go and absent from appointed place of duty); (2) Article 92 ( Failure to Obey a Lawful Order or Regulation, specifically – consuming alcohol prior to assigned period of duty); and (3), Article 134 ( General Article – Incapacitate d for P erformance of D uties).
Additionally, the Applicant ’ s record includes a formal counseling for the illegal use of a controlled substance (cocaine) as confirmed by a Naval Drug Lab urinalysis completed 45 days before the Applicant’s expiration of active obligated service . Furthermore, the Applicant acknowledged a complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 28 March 1994 as a condition of his enlistment. T he illegal use of drugs ( Violation of Article 112a , UCMJ) i s an offense requiring mandatory processing, regardless of time in service or grade, for an administrative separation that usually results in an unfavorable characterization of service at discharge. Commanders may also pursue confinement and punitive discharge through a special or general court-martial. I n the Applicants case, the command did not pursue legal or administrative adjudication of the offense and failed to process the Applicant for administrative separation, as required.

Issue 1 : (Decisional) ( ) , . In the Applicant ’ s request and justification for an upgrade to his characterization of service at discharge, he contends that certain enlisted members were falsely accusing him of behavioral issue s to establish a pattern of misconduct. 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 submitted no evidence to rebut this presumption. The Applicant ’ s record of service is marred with 4 formal retention warning counselings and 3 nonjudicial p unishments for various violations of the UCMJ . The Applicant ’ s service record indicates a pattern of misconduct and misconduct to include the commission of a serious offense; either warranted administrative separation for Misconduct pursuant to Chapter 6 of the Marine Corp s Separation and Retirement Manual. The Applicant’s command did not pursue this avenue of separation ; the Applicant therefore, was permitted to complete his obligated service contract .

 Per paragraph 1004 of the Marine Corps Separation and Retirement Manual, characterization of service is the recognition of the quality of a Marine’s performance and conduct. An Honorable characterization of service is the highest quality of characterization and is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization will be honorable for Marines with average proficiency marks of 3.0 or higher and average conduct marks of 4.0 or higher . I n reviewing the Applicant ’ s discharge proceedings, the board noted that the Applicant ’ s average Proficiency and Conduct marks in service were 4.3/4.1, respectively. Based on these marks, as directed by the Marine Corps Separation and Retirement Manual, the command was obligated to award the Applicant with an Honorable characterization of service; the command was not justified in awarding the Applicant a General (Under Honorable Conditions) discharge.

Although the command should have pursued either administrative or punitive action s to address the applicant’s illegal use of drugs, it did not : a contradiction to Marine Corps orders and policy. In failing to follow properly the prescribed procedures of the Marine Corps Separation and Retirement Manual , the command err ed; in doing so, it allowed this Applicant to be separated upon completion of his active obligated service with an H onorable characterization. As a matter of propriety, t he NDRB voted unanimously to upgrade the characterization of the discharge to Honorable ; the narrative reason for the discharge shall remain as issued .

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 that the discharge was improper and was not equitable. 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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