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USMC | DRB | 2010_Marine | MD1000421
Original file (MD1000421.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091119
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)       20050118 - 20050905     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050906     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081230      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 75
MOS: 0121 / 01 5 1
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoC LoA

Periods of CONF :

NJP:
- 20061208 :      Article (U nauthorized absence )
         Article 91 ( Insubordinate conduct toward an noncommissioned officer )
          Awarded: CCU Suspended: RIR FOP

- 2008110 5 :      Article ( U nauthorized absence - 2 specifications )
         Article (Willfully disobey ing an order or regulation - 2 specifications )
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :
- 20061208 :       For having received a lawful order from Corporal not to take a smoke break and to return to work, did willfully disobey the same and failure to go at the prescribed time to his appointed place of duty.
- 20070220 :       For having received a lawful order from Corporal to begin organizing the files and willfully disobey ed.
 - 20080725 :      For failure to report to his appointed place of duty and disrespect a noncommissioned officer.
- 20080930 :       For failing to report to appointed place of duty 0730 to 0745, 20080731 and 0530 to 0545, 20080827. SNM has a history of violating Article 86 in cluding 1 NJP dated 20061208, 2 6105 page 11 entries, dated 20061206 and 20080725 and separate counseling worksheets dated 20070709, 20070718 and 20080408.
- 20081104 :       For unauthorized absence 0531 to 0845, 20081022 ; having knowledge of a lawful order issued by a Sergeant to attend S-1 Physical Training on 20081022 and failed to obey, unauthorized absence 0730 -0839 , 20081023 and failure to obey lawful order.
- 20081215 :       For failure to obey CASCOM Regulation 190.2 by bringing a loaded, unregistered firearm into the Marine Corps Detachment.



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 ”

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 P1900.16F), 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

Applicant’s Issues

 1. The Applicant contends his discha rge is inequitable because of two minor incidents and a conflict with a superior officer.

Decision

Date: 20110120 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 counselings and for o f the Uniform Code of Military Justice (UCMJ): Article (Unauthorized absence - 3 specifications by failing to be at appointed place of duty on time), Article 91 (Insubordinate conduct toward a noncommissioned officer) , and Article (Willfully disobeying an order or regulation - 2 specifications). 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.

: (Decisional) ( ) . The Applicant contends that his two acts of misconduct were minor in nature, w ere separated by 24 months, and that he had a personal conflict with his superior officer. Despite a Marine’s prior record of service, multiple offenses over a period of time warrant separation from the naval service in order to maintain proper order and discipline. A lthough the Applicant had two NJPs for what he considers minor incidents , he additionally had six retention warnings (6105 formal counselings) , four of which were in the last five months prior to his discharge. The last retention warning was for bringing a loaded, unregistered firearm into the Marine Corps Detachment. There is no evidence in the record, nor has the Applicant produced any evidence, to support the con flict between him and the superior officer. In any event, it is his duty to follow orders from a superior noncommissioned or commissioned officer. In the Applicant’s separation package, his c ommanding o fficer stated , “ T he [ Applicant ] typically followed his own protocol with reference to accountability, bearing and mission accomplishment despite regular, witnessed safety and accountability briefings and warnings regarding proper decorum when addressing fellow Marines. His disruptive behavior started as a result of his off duty pursuits and affected his routine accountability. That negative behavior quickly escalated to his daily conduct at the Detachment; he was often openly disrespectful in public to his immediate supervision and he began to disregard deadlines and the core values expected of even the most basic of Marines.” T he Applicant was given plenty of opportunities to correct his behavior and failed to do so, resulting in his untimely , but appropriate, discharge. The NDRB determined the discharge was proper and fair . 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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