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USMC | DRB | 2010_Marine | MD1000101
Original file (MD1000101.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091015
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: Convenience of the Government                

Summary of Service

Prior Service:
Inactive:         USMCR (DEP) 19970908 19970922   Active:  

Period of Service Under Review:
Date of Current Enlistment: 19970923     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20000609      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 87
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      NONE

Periods of CONF : NFIR ( PTA : confinement referred to in Admin Sep d ocs, but no brig documentation found in record ) .

NJP:
- 20000216 :       Article (Absence without leave)
                  Specification 1: UA on 19991220
                  Specification 2: UA on 199 9 1221
         Article (Disrespect toward superior commissioned officer )
                  Specification 1: Disrespect to Maj
                  Specification 2: Disrespect to L tCol
         Article ( Insubordinate conduct toward noncommissioned officer)
                   Specification 1: Disobey GySgt
                  Specification 2: Disrespec t to Cpl
                  Specification 3: Disrespect to Cpl
          Awarded : Susp ended:

SCM: .   SPCM:    CC:

Retention Warning Counseling :
- 20000608 :       For being late to appointed place of duty 20000525.

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 ”
         “ MARCORSEPMAN 6210.6 ”
         “ HKQ1 ”

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 89 and 91 .



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

Applicant’s Issues

 1.       Applicant proposes improper separation code and separation authority were utilized during his administrative discharge to justify an Under Other Than Honorable Conditions .
2.       Applicant contends the command maliciously tainted his record of service by listing “ M isconduct ” as the narrative reason and “ HKK 1 ” as the separation code on his DD-214 when , in fact , he was never charge d nor convicted of illegal drug use/abuse.
3.       Applicant contends that a DD-214 change to narrative reason for separation from “ Misconduct ” to “ C onvenience of the G overnment ” is warranted due to i ncorrect documentation during his administrative discharge process .
 4.       Post-service conduct.

Decision

Date: 20 10 08 19            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall remain .
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 governmental affairs 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 warning, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absen c e without leave ), Article 89 ( Disrespect toward a superior commissioned officer ) , and Article 91 ( Insubordinate conduct toward noncommissioned officer). Based on the offenses committed by the Applicant, command administratively processed for separation . While doing so, the command was forced to seek confinement of the Applicant due to his disruptive and outrageous behavior. When notified of administrative separation processing , the Applicant exercised right to consult with a qualified counsel but waived his rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends that an improper separation authority (MARCORSEPMAN 6210.5) and resultant separation code ( HKK1 ) were utilized during his administrative discharge to “ justify an Under Other Than Honorable Conditions characterization of service ” due to misconduct as listed on his DD-214 . The Board did find that the separation authority specifi ed paragraph and resultant separation code listed on the Applicant’s DD-214 were , in fact , erroneous as the Applicant was administratively discharged for commission of a serious offense , which required “ MARCORSEPMAN 6210.6 ” as the separation authority and a separation code of “ HKQ1. ” However, t he Board found that the administrative separation process , the determined characterization of service (Under Other Than Honorable Conditions), and narrative reason (Misconduct) were proper and correct due to the Applicant’s guilty plea , subsequent guilty finding during Commanding Officer’s NJP on 16 Feb 2000 , and documentation in the Applicant’s service and administrative separation record s . T he NDRB will submit DD-214 correction recommendations to the Commandant of the Marine Corps on behalf of the Applicant.

Issue 2: (Decisional) ( ) . The A pplicant contends his command maliciously tainted his record of service by listing “ Misconduct ” as the narrative reason and “ HKK1 ” as the separation code on his DD-214 when, in fact, he was never charged nor convicted of illegal drug use/abuse . The Board found no evidence of deliberate attempts to improperly process the administrative separation of the Applicant from the Marine Corps. As evidenced by the service and administrative separation record s , the command was clearly processing the Applicant for discharge due to commission of a serious offense (UCMJ Articles 89 and 91) of which he was found guilty at Commanding Officer’s NJP on 16 Feb 2000. The refore, the Board determined that the administrative discharge was proper and , though administrative entry errors were made on the Applicant’s DD-214, there is no eviden ce of malfeasance . The NDRB will submit DD-214 correction recommendations to the Commandant of the Marine Corps on behalf of the Applicant .

Issue 3: (Decisional) ( ) . The A pplicant contends that a DD-214 change to narrative reason for separation from “ Misconduct ” to “ Convenience of the Government ” is warranted due to incorrect documentation during his administrative discharge process . Based on the evidence within the Applicant’s service and administrative separation records, the narrative reason for separation due to misconduct (commission of a serious offense) is warranted.

4 : (Decisional) ( ) . The Applicant provided documentation that included college diplomas from Georgia Perimeter College and the University of Phoenix . He also stated that he was a member of the board for Africa Education Project and a member of the Redeemed Christian Church of God and had been crime-free since his discharge in 2000, though he provides no documentary evidence to support these statements. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Documentation to help support a post - service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate s (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; attending or completing higher education (official transcripts) ; and documentation of a drug - free lifestyle. The Applicant’s efforts need to be more encompassing. 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 However, based on the evidence, the Board determined that the s eparation c ode (HKK1) and s eparation a uthority (MARCORSEPMAN 6210.5) as listed on the DD-214 are incorrect and should state “ HKQ1 ” and “ MARCORSEPMAN 6210.6 ” respectively . Therefore, the awarded characterization of service shall and the narrative reason for separation sh all remain . The NDRB will recommend to the Commandant of the Marine Corps that the DD - 214 be corrected as appropriate.

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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