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USMC | DRB | 2010_Marine | MD1000238 (2)
Original file (MD1000238 (2).rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091029 
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20001026 - 20010722     Active:   USMC 20010723 - 20041013 HON

Period of Service Under Review:
 Date of Current Enlistment: 20041014     Age at Enlistment: 18
Period of E nlistment : Years 10 Months
Date of Discharge: 20080703      H ighest Rank:
Length of Service : Y ea rs M on ths 19 D a ys
Education Level:        AFQT: 32
MOS: 0621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol MM x 3 x 2 PUC MM COC COA

Periods of UA / CONF :

NJP:

- 20050202 :      Article , Insubordinate conduct toward a noncommissioned officer, on 20050128 the Applicant was insubordinate to Sgt H_ by using profanity and saying “I’m not scared of you . ”
         Article , Failure to obey an order or regulation, the Applicant failed to obey a direct order by the Battery CO, 1 st Sgt , and SNCOIC about not drinking alcohol as it always affects his judgment.
         Awarded: Suspended:

- 20070201 :      Article , Drunken or reckless operation of a vehicle, physically controlled his vehicle with a BAC of 0.16.
         Awarded: Suspended: 2 MONTHS

- 20071012 :      Article , Failure to obey an order or regulation, on 20070930 wrongfully drove a motor vehicle while on a suspended drivers license.    
         Article , Drunken or reckless operation of a vehicle, physically controlled a vehicle with a BAC of 0.261.       
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:
- 20050203 :      Counseled concerning B n NJP on 20050202 for alcohol abuse.
- 20070201 :      Counseled concerning Bn NJP for violation of Article 111 on 20070128.
- 20071016 :       Counseled concerning Bn NJP for violati on of Article 111 on 20070928 and advised of scheduled alcohol treatment at Point Loma.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:
Block 18, Remarks, should include: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20010723 TO 20041013 ”
         Character o f Service, should read: “ UNDER OTHER THAN HONORABLE CONDITIONS ”
          “ MARCORSEPMAN PAR 6210.3 ”
“ MISCONDUCT ”
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

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 (REVISED 6/2011)

Applicant’s Issues

 1.        The Applicant contends that no grieving time was given for his father’s terminally ill condition with cancer or hardly any time at home after his death.
2.       The Applicant contends that his first NJP was too harsh given that he had no prior incidents with alcohol and had his re-enlistment incentive of Marine Security Guard (MSG) school taken away even though he maintained full eligibility to attend on the scheduled date of 15 May 2005.
3.       The Applicant contends that he was never properly diagnosed as alcohol dependent until after more than 6 years in service and after his last incident.
4.       The Applicant contends that the medical examiner at Point Loma put in his medical records that he was there for being charged for his 3 rd DUI and that he attended an IMPACT alcohol course in March 2004, both of which were false, and that evidence along with three NJPs were used against him at his Administrative Separation Board (ASB) and made the panel believe facts that were otherwise false and could have changed the outcome.
5.       The Applicant contends that his NJP from his first enlistment was used against him at his ASB when he was currently on his second four-year enlistment contract as stated in his Basic Individual Record.
6.       The Applicant contends that his unit told him that the worst discharge he could get was a Bad Conduct Discharge, even though he was never recommended to go to any type of court-martial, just an administrative separation by his battalion commander.
 7.       The Applicant contends that no official statement was entered into his Service Record Book (SRB) stating why his orders to MSG were being taken away.
8.       The Applicant contends that his proficiency (Pro) and conduct (Con) marks upon discharge were still above what was needed to warra nt a full Honorable discharge.
9.       The Applicant contends his discharge was inequitable , because other servicemembers were punished less harshly for similar misconduct or had their misconduct mitigated by similar circumstances.
10 .       The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date: 20101118 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board complete d a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward a noncommissioned officer, on 20050128 the Applicant was insubordinate to Sgt H_ by using profanity and saying “I’m not scared of you . ” ), Article 92 ( 2 specifications: Specification 1, Failure to obey an order or regulation, the Applicant failed to obey a direct order by the Battery CO, 1 st Sgt and SNCOIC to not drink alcoho l due to the affects it has on his judg ment ; Specification 2 , Failure to obey an order or regulation, on 20070930 wrongfully drove a motor vehicle while on a suspended driver ’ s license), and Article 111 ( 2 specifications: Specification 1, Drunken or reckless operation of a vehicle, 20070128 physically controlled his vehicle with a BAC of 0.16 ; Specification 2 , Drunken or reckless operation of a vehicle, physically controlled a vehicle with a BAC of 0.261). The Applicant also had a pre-service drug waiver for using marijuana pri or to entering the Marine Corps. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to r equest an administrative board.

: (Decisional) (Equity ) RELIEF NOT WARRANTED. The Applicant contends that no grieving time was given for his father’s terminally ill condition with cancer or hardly any time at home after his death. The Applicant was afforded leave to see his father during his illness and to attend his funeral. While the NDRB understands that he grieved for his father, there are numerous resources made available to servicemembers, to include a Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross , to deal with grief . In any event, the Applicant’s grief does not excuse or mitigate his subsequent misconduct, for which he was responsible. The NDRB recognizes that serving in the Marine Corps is challenging. Most servicemembers, however, serve honorably and therefore earn their honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. Relief denied.

I ssue 2: ( D ecisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that his first NJP was too harsh given that he had no prior incidents with alcohol and had his re-enlistment incentive of Marine Security Guard (MSG) school taken away even though he maintained full eligibility to attend on the scheduled date of 15 May 2005. This issue is not relevant to the NDRB’s review of the propriety and equity of the Applicant’s discharge. It is not in the NDRB’s authority to question punishment at an NJP. The Applicant’s commander was completely within his authority to assign the punishment. If the Applicant felt his punishment w as too harsh, he had the option of appealing the punishment to his battalion commander’s superior. He declined to appeal the punishment at the time of the NJP. The MSG orders were likely revoked because the Applicant had an alcohol-related incident.

: (Decisional) (Equity ) RELIEF NOT WARRANTED. The Applicant contends that he was never properly diagnosed as alcohol dependent until after more than 6 years in service and after his last incident. When the Applicant was diagnosed as being alcohol dependent has no bearing on the propriety and equity of his discharge. If the Applicant is implying that all alcohol-related misconduct before his diagnosis is somehow mitigated or excused, this is a faulty assumption. Al cohol consumption is never a rationale or an excuse for inappropriate conduct, misconduct, or poor judgment. Relief denied.

Issue 4: (Decisional) ( Equity ) RELIEF NOT WARRANTED. The Applicant contends that the medical examiner at Point Loma put in his medical records that he was there for being charged for his 3 rd DUI and that he attended an IMPACT alcohol course in March 2004, both of which were false, and that evidence along with three NJPs were used against him at his Administrative Separation Board (ASB) and made the panel believe facts that were otherwise false and could have changed the outcome. The Applicant’s record clearly shows he displayed a pattern of misconduct in his most recent enlistment that included three NJPs and three retention warnings for multiple violations of the UCMJ. Even if the 3rd DUI and IMPACT course attendance are taken out of the record, the Applicant had more than enough misconduct to warrant the ASB’s recommendations to separate him from the Marine Corps with an Under Other Than Honorable Conditions discharge. The NDRB determined that these two false assertions did not affect the characterization of discharge recommendation. An Under Other Than Honorable Conditions discharge was completely in line with the type of discharge given to other Marines with similar misconduct involving multiple, serious offenses of the UCMJ.

Issue 5: (Decisional) ( Propriety/Equity ) RELIEF NOT WARRANTED. The Applicant contends that his NJP from his first enlistment was used against him at his ASB when he was currently on his second four-year enlistment contract as stated in his Basic Individual Record. Marine Corps regulations state that an ASB can use prior enlistment and pre-enlistment information when forming a recommendation for retention but not for discharge characterization. It is likely that the ASB considered the Applicant’s NJPs from both his first and second enlistments to arrive at their recommendation not to retain the Applicant in the Marine Corps. However, the NDRB determined that the ASB did not consider the Applicant’s NJP from his first enlistment when formulating their recommendation for the Applicant to receive an Under Other Than Honorable Conditions characterization of discharge. The Applicant’s record clearly shows he displayed a pattern of misconduct in his most recent enlistment that included three NJPs and three retention warnings for multiple violations of the UCMJ. The NDRB determined that his ASB made proper recommendations concerning his retention and characterization of service. Relief denied.

Issue 6: (Decisional) ( Propriety /Equity ) RELIEF NOT WARRANTED. The Applicant contends that his unit told him that the worst discharge he could get was a Bad Conduct Discharge, even though he was never recommended to go to any type of court-martial, just an administrative separation by his battalion commander. The Applicant is correct in his contention. Because he had committed serious offenses per the UCMJ (violation of Articles 91, 92, and 111), his command could have referred him for trial at a Special or General Court-Martial. Commission of serious offenses usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge (i.e., Bad Conduct) and possible confinement if adjudicated and awarded as part of a sentence by a Special or General Court-Martial. The Applicant was found guilty of violation of Articles 91, 92, and 111 in his current enlistment. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate. Relief denied.
Issue 7: ( D ecisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that no official statement was entered into his Service Record Book (SRB) stating why his orders to MSG were being taken away. This issue is not relevant to the NDRB’s review of the propriety and equity of the Applicant’s discharge. There is no requirement or regulation that mandates an official statement or explanation be entered into a Marine’s SRB when special duty assignment (i.e., MSG) orders have been revoked. A special team at Headquarters Marine Corps is responsible for selecting (and de-selecting, if necessary) Marines for MSG. Their decision to revoke the Applicant’s orders to MSG school was likely the result of his alcohol-related incident , misconduct for which he was responsible . The decision, however, had no bearing on the propriety or equity of the discharge.

Issue 8: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends that his proficiency (Pro) and conduct (Con) marks upon discharge were still above what was needed to warrant a full Honorable discharge. 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 S ervice. When a Marine reaches the end of an enlistment, the characterization of service is dependent upon Pro/Con marks. However, when a Marine is separated prior to the end of an enlistment, the separating authority determines the characterization of service. The separating authority determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected acts that were a significant departure from the conduct expected of a servicemember and the awarded characterization, as issued, was appropriate and was equitable. Accordingly, relief denied.

Issue 9 : (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge was inequitable, because other servicemembers were punished less harshly for similar misconduct or had their misconduct mitigated by similar circumstances. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records and the facts and circumstances unique to this case , nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . The Applicant should understand his separation was administrative in nature, not punitive. Although his discharge was the result of misconduct, it was not part of the punishment awarded at either a court-martial or NJP. Furthermore, as discussed above, violations of Article s 91, 92, and 111 could have resulted in punishment substantially more harsh than the discharge the Applicant received. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.
Issue 10 : (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant believes his post-service conduct is worthy of consideration. The Applicant provided documentation that included: , letters of personal reference, letters of recommendation from employers and professors, dean’s list certificate, proof of volunteering with kindergarten children, birth certificate of son, proof of father’s death , certification of non-involvement with civil authorities, and evidence of an alcohol-free life style: . The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. 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, Reenlistment/RE-code , Employment/Educational Opportunities, Service Benefits 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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