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USMC | DRB | 2010_Marine | MD1000014

Original file (MD1000014.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20090930

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)       20030919 - 20040104     Active:

Period of Service Under Review:
Date of Current Enlistment: 20040105     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070119      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 71
MOS: 0121
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA (x2)

Periods of UA / CONF :

NJP:

- 20051116 :       Article (Violated a lawful regulation, wrongfully wearing improper civilian attire )
         Article 92 (Violated BnO 11101.2, having a visitor in her BEQ room after visitor hours)
         Awarded : Susp ended: FOP

- 20060421 :       Article 92 (Violation of BaseO P5500.15a, when she was driving unaccompanied with a learners permit)
         Awarded : Susp ended:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 20050906 :       For violation of Articles 86 and 92 of the UCMJ.

- 20051117 :       For violation of Article 92, failure to obey order or regulation, and Article 107, false official statement.

- 20060724 :       For moving violation on 20060719 for speeding 90 mph in a 55 mph zone.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

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 . Applicant contends that her service warrants an H onorable characterization of service based on her average proficiency and conduct markings in service at time of separation .

Decision

Date: 20 10 1022 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall CONDITION NOT A DISABILITY .

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 identified one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that l ed 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 include s three 6105 retention- counseling warnings and two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey a lawful order or regulation, 2 separate specifications ) . The Applicant ’ s record of service contains no record of courts martial.

The NDRB reviewed the Applicant’s administrative separation package; when notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and to submit a written statement to the separation authority. The Applicant was notified of the Command’s intent to administrative ly separate her pursuant to the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) by reasons of both Convenience of the Government, Condition N ot a Disability and Misconduct, Minor Disciplinary Infractions. The command recommended that the separation authority consider the Condition N ot a Disability as the primary basis for separation. The separation authority (the General Courts Martial Convening Authority) reviewed both bas e s for separation and, after consideration of all the facts and the Command endorsement, concurred with both bas e s for separation. However, the separation authority approved the Convenience of the Government, Condition N ot a Disability as the primary basis for separation.

The Applicant did not provide the NDRB with any documentation that wa s not already included in her official military file or in Navy and Marine Corps regulations.

: (Decisional) ( ) . The Applicant contends that her service warrants an H onorable characterization of service based on her average proficiency and conduct markings in service.

The Applicant’s proficiency and conduct markings, which form a primary basis for determining the character of service, reflect ed h er performance and her misconduct and at the time of processing for separation (4.3/3.9) , falling below that required for an H onorable characterization of service. With the Applicant’s final proficiency and conduct marking at separation (4.5/4.5) included, the Applicant ’ s overall in - service markings were elevated to 4.5/4.0, respectively.

However, proficiency and conduct markings are not the only factors considered when determining characterization of service at separation. The separation authority considered both bas e s – Convenience of the Government and Misconduct – when making the final determination at separation. W hen 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. A General (Under Honorable Conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The Applicant’s overall misconduct - minor disciplinary infractions - was a pertinent factor in the separation authorit y’s decision.

The Applicant’s service was marred by the award ing of nonjudicial punishment on two occasions for violations of the UCMJ. The Applicant’s misconduct included repetitive violations of lawful orders or regulations. Violation of Article 92 of the UCMJ is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. Additionally, the Applicant was counseled pursuant to paragraph 6105 of the MARCORSEPMAN regarding her retention in the service due to violations of Article s 86 and 107 of the UCMJ.

By a vote of 5-0, the B oard determined that the Applicant’s conduct, which forms the primary basis for determining the character of h er service, reflect ed a failure to meet the requirements of h er contract and falls short of that required for an upgrade of a characterization of service ; accordingly, an upgrade to H onorable would be inappropriate. Relief not warranted .

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 | 2010_Marine | MD1000014

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