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USMC | DRB | 2010_Marine | MD1000089

Original file (MD1000089.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)       19960116 - 19960722     Active:

Period of Service Under Review:
Date of Current Enlistment: 19960723     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980415      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 45
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle

Periods of CONF: 19971126 – 19971224 (28 days)

NJP: 4
- 19970131 :       Article 92 (Failure to obey Base Order 1700.14C)
         Awarded : Susp ended:

- 19970226:      Unknown Article / Extracted from MCTFS. Member reduced in Rank at Bn Cmdr NJP this date. Good Conduct Medal commencement date reset this date.

- 19970303 :       Article 92 (Failure to obey a lawful order)
         Awarded : Susp ended:

- 19970919 :       Article 86 ( U nauthorized Absence, failure to go to appointed place of duty, to wit: Physical Therapy Clinic, Naval Hospital Camp Lester from 1300-1600 , 13 specifications )
         Awarded : Susp ended: Vacated 19971016

SCM:
- 19971126 :       Art icle (Disrespectful in language and deportment toward a Non-Commissioned Officer )
         Article 134 (Breaking restriction)
         Sentence : (19971126-19971224, 28 days) ,

SPCM:    CC:

Retention Warning Counseling :

- 19970527 :       For involvement in at least 2 disciplinary infractions; 2 NJPs have been documented in Unit Punishment Book . In addition to my irresponsibility in losing my Service Record Book, my previous violation of the UCMJ indicates a trend of displaying and inability to adjust to Marine Corps regulations and discipline. On 19970131, I received NJP for consuming alcohol while under the legal drinking age. On 19970303, I received another NJP for wearing PFC chevrons after being reduced to Private.

Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT ”
         “ (28) 19971126-19971224 ”

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 P1900.16E), effective 31 January 1997 until 31 August 2001.

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 issues : (Equity) (1) Applicant contends that his discharge characterization of service was inequitable based on t he MARCORSEPMAN and should have been a General, Under Honorable Conditions at a minimum based on his record of service . (2) Applicant contends that prescribe d medications for pain post hand surgery clouded his judgment and decision making ability and should have been considered as mitigation in his discharge determination and characterization of service determination.

Decision

Date: 20 10 1110 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 NDRB complete d a thorough review of the circumstances that l ed to the Applicant’s discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety. The Applicant entered military service with a Recruiting Station Commanding Officer waiver for pre-service drug use (marijuana). His record of service include s one 6105 retention- counseling warning and four non-judicial punishments for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , specific ally – Failure to go to appointed place of duty (13 specifications) ) and Article 92 ( Failure to obey an order or regulation). Additionally , the Applicant was subject to a summary court martial for continued violation of the UCMJ : Article 91 (Insubordinate conduct to a Warrant , Non-Commissioned, Petty Officer ) and Article 134 (Breaking Restriction) . Based on the offenses committed by the Applicant, his command administratively processed him for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived his rights to consult with a qualified counsel, submit a written statement, or request an administrative board . The NDRB applied the presumption of regularity of governmental affairs in this case in the absence of a complete discharge package; the separation program code assigned to the Applicant’s discharge indicates that an administrative discharge board was warranted, but waived by the Applicant. The Applicant was approved for separation and returned to the Continental United States to be separated from the service.

The Applicant provided no documentation beyond that which was contained in his official service record and a Department of Veterans Affairs medical determination for disability rating. Neither of these documents overcome the government ’ s presumption of regularity in the conduct of affairs.

: (Decisional) ( ) . The Applicant contends that his discharge characterization of service was inequitable based on t he MARCORSEPMAN definitions and , based on his record of service , should have been a General, Under Honorable Conditions characterization at a minimum. Characterization of service reflects the recognition of a Marine’s performance and conduct, and is not necessarily dependent upon the narrative reason for separation. Generally, Marines with proficiency marks of 3.0 or higher and conduct marks of 4.0 or higher receive an Honorable characterization of service at discharge. The Applicant’s overall marks for proficiency and conduct were 3. 8 and 3. 5 , respectively. 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 Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval service. T he Applicant ’ s service record reflects a retention counseling warning regarding his conduct, four NJPs, and a conviction at a summary court - martial with 28 days of confinement . These documented acts or omissions constitute d a significant departure from the conduct expected of a Marine a nd the awarded characterization , as issued, was most appropriate . An upgrade would be inappropriate . Relief denied .

: (Decisional) ( ) . The Applicant contends that prescribe d medications for pain , post hand surgery , clouded his judgment and decision making ability and should have been considered as mitigation in his discharge determination and characterization of service determination. The Applicant provided no documentation to support his contention s . The Applicant’s record of service documents three disciplinary infractions of the UCMJ that warranted non-judicial punishment prior to his surgical repair. Furthermore, the Applicant’s misconduct incidents were 4 and 6 months after his surgery . Based on a preponderance of the evidence available in the Applicant’s medical and service record , the NDRB determined that pain medication was not a mitigating factor in the Applicant ’ s misconduct. As such, the narrative reason for separation and the resultant characterization of service were both proper and equitable. 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 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 | MD1000089

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