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USMC | DRB | 2010_Marine | MD1000081
Original file (MD1000081.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091008
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)       20021101 - 20021229     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20021230     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080220      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 42
MOS: 0331
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA

Periods of CONF :

NJP:
- 20030805 :       Article ( Consumed alcohol less than eight hours prior to duty)
         Article ( Incapacitated for proper performance of duty)
         Awarded: CCU Suspended:

- 20040325 :       Article (Disrespected 1 st Sgt )
         Article (Failure to obey lawful order), 2 specifications
         Specification 1: Get out of rack and get dressed
         Specification 2: Shave
         Article (UA 0600-0615, 20040227)
         Awarded : Susp ended:

- 20040 413 :       Article ( UA)
         Article ( Breaking restriction )
         Awarded : Susp ended:

SCM:

SPCM:
- 20040727 :       Article 91 ( Insubordinate conduct toward warrant, noncommissioned, or petty officer ) 2 specifications
          Specification 1: Disrespectful in language and deportment toward a staff sergeant, a superior staff noncommissioned officer
         Specification 2: Disrespectful in language and deportment toward a sergeant, a noncommissioned officer
         Awarded : FOP CONF (100 days) Hard labor without CONF for 2 months BCD
         Susp ended:
         Note: The record of trial was lost and the sentence and findings of guilty were set aside, and the charges and specifications were dismissed.


CC:

Retention Warning Counseling :

- 20030805 :       For misconduct.

- 20040210 :       For violation of Alcohol Treatment Plan by consuming beer in the barracks. Due to your failed judgment and insubordinate attitude, you failed to comply with orders given from your Treatment Plan. This type of unsatisfactory behavior is unbecoming of a Marine and will not be tolerated.

- 20040325 :       For misconduct.

- 20040421 :       For misconduct.

Administrative Corrections to the Applicant’s DD 214

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

          “ MARCORSEPMAN 1005 ”
          “ MBK1 ”
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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present,
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. Wants his reentry code changed to reenlist in the reserves or another branch of the military.
2. Wants to use his GI Bill benefits.
3. Changed for the better since being out.
Decision
Date: 20 10 1104            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 four 6105 cou nseling warnings , three nonjudicial punishments for violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications: unknown period and 15 minutes), Article 91 (Disrespect toward a 1 st Sergeant), Article 92 (Failure to obey order or regulation, 4 specifications: consumed alcohol less than eight hours prior to duty, breaking restriction, not getting out of the rack and dressed, and not shaving), and Article 134 (Incapacitated for proper performance of duty) , and one special court-martial (SPCM) for violations of the UCMJ: Article 91 (Insubordinate conduct toward warrant, noncommissioned, or petty officer, 2 specifications: disrespectful in language and deportment toward a staff sergeant, a superior staff noncommissioned officer and disrespectful in language and deportment toward a sergeant, a noncommissioned officer) . At the SPCM, the Applicant was also charged with violation of Article (Wrongfully communicate a threat to injure a sergeant by making hand gestures as though he was shooting a gun and stating, “I’m going to kill you,” or words to that effect), but he pled not guilty and was found not guilty to this charge. The Applicant pled and was found guilty to the Article 91 charges and was sentenced to forfeit ure of pay, confinement for 100 days, hard labor without confinement for 2 months , restriction, and a Bad Conduct discharge. However, during the Appel l ate review, th e record of trial was lost . Consequently, the sentence and findings of guilty were set aside, and the charges and specifications were dismissed. The Applicant ’s narrative reason for separation was changed to completion of required active service and based on his proficiency/conduct (pro/con) marks was given a General (Under Honorable Conditions) characterization of service.

Issue 1: (Nondecisional) The Applicant wants his reentry code changed to reenlist in the reserves or another branch of the military. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not authorized to change a reentry code. Only the Board for Correction of Naval Records 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.
Issue 2: (Nondecisional) The Applicant wants to use his GI Bill benefits. 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.

Issue 3 : (Decisional) ( ) . The Applicant contends he has c hanged for the better since being out. The NDRB considers 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. The Applicant provided documentation regarding his education and training. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. The Applicant c ould have provided documentation that could include but is not limited to: letters of personal reference , verifiable employment record, letters of recommendation from employers , certification of non-involvement with civil authorities , evidence of financial stability (mortgage or home rental history, credit score, credit card payments) , documentation of community or church service , and if married, a marriage certificate. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.


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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