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USMC | DRB | 2010_Marine | MD1000270
Original file (MD1000270.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091103
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)       19960516 - 19961216     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19961217     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20000918      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 68
MOS: 1142
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoA MUC

Periods of UA/ CONF :

NJP:
- 19981214 :      Article ( Failure to obey an order or regulation by drinking alcohol while underage)     
         Article 108 (Damaging government property)
         Article 128 (Assault – with a broken glass bottle)
         Awarded: Suspended:

- 19990528 :      Article (U nauthorized absence: 2 specifications of failure to go on numerous occasions )
         Article ( Failure to obey an order or regulation - 2 specifications of underage drinking)
         Article 111 (Driving under the influence of alcohol BAC .09%)
         Article 134 (Incapacit ation for performance of duty - 2 specifications )
         Awarded: Suspended:

- 19991103 :      Article (Failure to obey an order or regulation )
         Article (Drunken operation of a vehicle)
         Awarded : Susp ended:

SCM:

SPCM:

CC ARREST:
- 20000804 :       Charges: Driving while under the influence, felony hit and run, and a misdemeanor for driving on a suspended license.
CC:


Retention Warning Counseling :
- 19980521 :       For substandard performance in maintaining your state of physical fitness. On 19980512 you failed to achieve a passing score on the PFT for the first semi-annual period of 1998. You have been instructed on maintaining a minimum behavior for your professional position and responsibility. This discrepancy in performance and conduct will be noted and taken into consideration for evaluation and review. It will be a factor for your proficiency and conduct markings for the current period. You were assigned to the Bn Remedial PT Program, conducted by a B Co, and will remain on this program until such a time that you achieve a passing score on the next PFT conducted by this SNCOIC, OIC, and the Bn Chaplain.

- 19981109 :       For misconduct, specifically on 19981026, while on duty at the front gate, you overheard a conversation between LtCol R_ ESD OIC; Capt D_, EMDO’ GySgt B_, ESD engineer section NCOIC, and SSgt K_, ESD engineer discussing the positive urinalysis results of PFC C_ and other Marines. After hearing this conversation, you called and informed PFC C_ that he and the other Marines tested positive and were in trouble, thereby tipping the Marines prior to them being officially informed and advised of their rights by the Company. You are specifically advised not to ease drop on any con versations between Marines senior to you; and/or to request permission to excuse yourself from an area if confidential information is being discussed and you can hear it.
- 19990812 :       For unsatisfactory performance and failure to meet weight standards (current weight is 192 pounds; max weight by MCO 6100.10B is 181 pounds). Specifically, failure to meet scheduled weight reduction.

- 19991101 :       For my alcohol related incident, specifically DUI (.13 BAC).

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 31 January 1997 until 31 August 2001), Paragraph 6210, MISCONDUCT :

 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 111 (Driving under the influence of alcohol ).


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

Applicant’s Issues

 1. The Applicant seeks an upgrade for service benefits.
 2 . The Applicant seeks an upgrade for educational opportunities.
 3 . The Applicant contends his disch arge is inequitable , because he almost finished his enlistment.

Decision

Date: 20110106 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 did complete a thorough review of the circumstances that 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 and for o f the Uniform Code of Military Justice (UCMJ): Article (Unauthorized absence: 2 specifications of failure to go on numerous occasions), Article (Failure to obey an order or regulation - 4 specifications, three being for underage drinking), Article 108 (Damaging government property), Article 111 (Driving under the influence of alco hol - 2 specifi cations), Article 128 (Assault - broken glass bottle) , and Article 134 (Incapacitation for performance of duty - 2 specifications). Additionally, the Applicant was arrested by civilian law enforcement and charged with driving while under the influence, felony hit and run, and a misdemeanor for driving on a suspended license. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to request an administrative board.

: (Nondecisional) The Applicant seeks an upgrade for service benefits and for educational opportunities. 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. Also, 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.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because he almost finished his enlistment. Despite a Marine ’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. Originally, the Commanding Ge neral approved the Applicant’s separation by reason of Level III Alcohol Rehabilitation Failure, but those actions were delayed due to pending criminal charges, resulting in him being retained. On 1 August 2000, the pending criminal charges were dismissed. However, three days later on 4 August 2000, the Riverside County California Sheriff’s Department made a felony arrest on the Applicant on driving while under the influence, felony hit and run, and a misdemeanor for driving on a suspended license. The Applicant was re-notified and discharged accordingly for commission of a serious offense . An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The NDRB determined that an upgrade would be inappropriate. 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, E mployment/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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