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USMC | DRB | 2009_Marine | MD0902584
Original file (MD0902584.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090922
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)       19910314 - 19910506     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19910507     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19950315      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 32
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA

NJP:

- 19930408 :       Article 86 (UA), 2 Specifications,
         Specification 1: Failed to at time prescribed to Area #5 gym for all hand working party 0700, 19930205
         Specification 2 : UA 1600-2210, 19930210
         Awarded : CC 30 days Susp ended:

- 19941206 :       Article 86 (Absent from unit 19941024-19941121 , 28 days )
         Article 90 (Willfully disobeyed a lawful order from superior commissioned officer, check into I&I Station)
         Awarded : Susp ended:

- 19950224 :       Article 86 (UA from section muster 0700, 19950221)
         Article 92 (Failed to obey a lawful order, to be at Battalion formation on 19950221)
          Article 108 (Damage military property, kicking out vent on bathroom door)
         Awarded : Susp ended:

SCM:

- 19941228 :       Art icle (Absent from place of duty, restrictions at his quarters)
         Article 134 (Wrongfully and willfully impersonate a NCO, by showing the credentials of an NCO)
         Article 134 (Break restriction)
          Sentence : (19950103-19950121, 18 days)

SPCM:

CC:


Retention Warning Counseling :

- 19940127 :       For civil conviction for driving while intoxicated with a blood alcohol content of . 13.

- 19950110 :       For complaint made by wife that I failed to provide adequate support to her and my dependent children since November 1, 1994.

- 19950222 :       For failure to pay for a haircut at MWR Barber Shop, giving your ID Card to a civilian employee as security for payment for your haircut, failure to turn in movies to MWR and failure to obey regulations and paying your bills


Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT ”
         “ (24) 941024-941117; (18) 950103-950121 ”
        
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 P1900.16D), 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 .



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

Applicant’s Issues
1.       The Applicant contends circumstances in his personal life mitigate his misconduct.
2.       Post-service .

Decision
Date: 20 10 1014        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’s record of service included 6105 counseling warnings, for o f the Uniform Code of Mi litary Justice (UCMJ): Article 86 (Unauthorized absence , 4 specifications), Article 90 (Failure to obey the order of a superior commissioned officer , 1 specification), Articl e 92 (Failure to obey an order or regulation , 1 specification ) , and Article 108 (Damage to military property), and for of the UCMJ: Article 86 (Absent from place of duty), Article 134 (Wrongfully and willfully impersonate an NCO), and Article 134 (Break restriction). The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps and acknowledged complete understanding of the Marine Corps Policy Con cerning Illegal Use of Drugs on 12 March 1991 . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends circumstances in his personal life mitigate his misconduct of record. The record reflects the Applicant was dealing with some family difficulties during the time of his misconduct. However, the record shows willful and persistent misconduct. It is clear from the record the Applicant’s command attempted to assist him in dealing with his personal issues. This was especially noted in the commanding officer’s separation remarks when he stated the Applicant had “…disregarded any command assistance … . ” The Applicant provided no documentation to support his contention. After careful consideration of the evidence in the record, the NDRB found relief to be unwarranted.

: (Decisional) ( ) . The Applicant requested that the NDRB consider post - service conduct as a basis for a more thorough understanding of h is performance and conduct during the period of service under review . The Applicant provided no documentation to support a post-service conduct review. The Applicant c ould have provide d documentation including but not limited to: letters of personal reference ; verifiable employment record/letter s of recommendation from his employers; certification of non-involvement with civil authorities ; evidence of financial stability (home ownership/home rental history, credit card payments); college transcripts; documentation of community/church service ; and a marriage certificate. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Without any post-service documentation, the NDRB could not consider post-service conduct in determining if the Applicant warranted an upgrade. 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 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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