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USMC | DRB | 2009_Marine | MD0902576

Original file (MD0902576.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)       20041028 - 20050711     Active:

Period of Service Under Review:
Date of Current Enlistment: 20050712     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 2005122 9      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 33
MOS: 9900
Proficiency/Conduct M arks (# of occasions): (NFIR) / (NFIR) Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Period of UA: 20051022 – 20051103 (11 days)

NJP:

- 20051115 :      Article (UA 1630, 20051022 - 0430, 20051103, 11 days)
         Awarded: Suspended:

SCM:

- 20051130 :       Art icle (UA), 2 specifications : Failure to go to appointed places of duty
         Article 92 (Failure to obey order or regulation), 2 specifications
         Specification 1: Violation of CG MCRD TEMINS Order, r efusing to participate in training 20051122
         Specification 2: Violation of OPNAVINST 5100.23F, Smoking in Barracks 20051122
         Sentence : (dates NFIR)

SPCM: CC:

Retention Warning Counseling :

- 20051115 :       For unauthorized absence from 20051022 - 20051103.

Administrative Corrections to the Applicant’s DD 214

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

“ (11) 051022 - 051103 ”

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:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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 is seeking to reenlist in the Marine Corps and is request ing a change in her re-enlistment code or that her characterization of service be upgrade d to Honorable.

2.       Decisional issue : (Equity) Applicant contends that the characterization of her discharge is based on a minor, isolated incident, which does not warrant characterization of her service as Under Other Than Honorable Conditions.

Decision

Date: 20 10 1015          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 for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to the 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 counseling warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave – specifically, unauthorized absence for a period of 11 days). Additionally, the Applicant’s record reflects for violations of the UCMJ: Article 86 ( Absence without leave – specifically 2 specifications of failure to be at appointed place of duty) and Article 92 (Failure to obey an order or regulation, 2 specifications of failure to obey a lawful order or regulation).

The NDRB reviewed the Applicant’s administrative separation package to determine if the Applicant was accorded her rights as specified by the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). When notified of a dministrative separation processing using the administrative board notification procedure, the Applicant waived her rights to consult with a qualified counsel, to submit a written statement, or to request an administrative board hearing .

Submission of items for consideration by the Board does not guarantee an upgrade from an unfavorable discharge ; t he Board, on a case-by-case basis, reviews each discharge on its own merit . Besides the Applicant ’ s statement on the DD Form 293, s he provide d no additional documentation or evidence for consideration by the Bo a rd .

: (Nondecisional) – The Applicant is seeking to reenlist in the Marine Corps and is requesting a change in her re-enlistment code or that her characterization of service be upgrade d to Honorable . T he NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces . As such , the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records can make changes to reenlistment codes. Reenlistment policy of the Marine Corps is promulgated by the Commandant, United States Marine Corps, Code MMEA, 3280 Russell Road, Quantico, VA 22134. Neither a less than fully honorable discharge , nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done during the processing of a formal application for enlistment through a recruiter. The Applicant is directed to the Addendum page , specifically , the paragraph concerning s .

: (Decisional) ( ) . The Applicant contends that the characterization of her discharge was based on a minor, isolated incident, which does not warrant characterization of her service as Under Other Than Honorable Conditions.

The Applicant’s record of service includes two different recommendations for administrative separation. The A pplicant was considered for separation by reason of C onvenience of the G overnment – P ersonality D isorder and for M isconduct – P attern of M isconduct. Pursuant to paragraph 6203.3 of the MARCORSEPMAN , members may be processed for separation based on a mental health care professional's clinical diagnosis of a personality disorder . T his separation is applicable 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. However, a s eparation for personality disorder is not appropriate when separation is warranted for any other reason , such as meet ing the minimum criteria for misconduct processing. The record of evidence reflects the Applicant met the requirements for processing by reason of Convenience of the Government – Personality Disorder and for Misconduct – Pattern of Misconduct as established by her p attern of m isconduct .

When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions . An Under Other Than Honorable C onditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member . The Applicant’s record of service - 5 months and 7 days - was marred by a non-judicial punishment for violation of Article 86 and a Summary Court - Martial for violation of Articles 86 and 92 of the UCMJ . The Applicant expressed no desire for retention and refused to train while undergoing her initial entry-level training requirement. Moreover, c ertain serious offenses, even though isolated, warrant separation from the naval service in order to maintain the good order and discipline of the service . V iolation of Article 92 is such an offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. In the Applicant’s case, t he command did not pursue trial by c ourt -m artial and a punitive discharge , but instead opted for the more lenient administrative discharge.

Based on the Applicant ’ s well-documented , willful , and deliberate misconduct and her explicitly stated refusal to train, t he 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 . 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 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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USMC | DRB | 2009_Marine | MD0902576

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