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USMC | DRB | 2010_Marine | MD1000427
Original file (MD1000427.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091117
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)       20030915 - 20040803     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040804     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071109      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 88
MOS: 2621
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol JSAM JMUA (2) CoA (3) LoA MM LoC

Periods of CONF :

NJP:

- 20070208 :      Article (UA) , 4 specifications
          Specification 1: Physical training session
         Specification 2: Promotion formation
         Specification 3 and 4 : Late two times for Substance Abuse Intensive Outpatient Treatment
         Article 92 ( Failure to obey order or regulation)
         Specification 1: Arrested for underage drinking
         Specification 2: Failed to meet minimum requirements for the treatment and was released early as a “treatment failure ”
         Article 111 ( Drunken or reckless driving )
          Awarded: Suspended: Suspension vacated 20070327

- 20070606 :      Article (Made unauthorized purchases with his GTCC)
         Article (Outstanding overdue balance on his GTCC in excess of $2,000.00 in personal expenses)
         Article 107 (False official statement)
          Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20061130 :       For an alcohol-related incident on 20061117 , wherein you were charged by Anne Arundel County Police Department for DUI.


- 2007022 2 :       For an alcohol-related incident on 20061117, wherein you were arrested by Anne Arundel County Sheriffs Department for the following suspected charges: DUI. On 20070228, you were charged during NJP for violations of Article 86, 92 , and 111, for drinking alcohol while under the age of 21.

- 20070612 :       For violation of Articles 92, 107, and 121 in that you misused your government travel card for personal use and then made false official statements to your chain of command concerning its use.

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.       Nondecisional issues : The Applicant seeks relief in the form of an upgrade in the characterization of his service at discharge as well as a change in re-enlistment code in order to facilitate re-entry into the Armed Services.

2.       Decisional issues : (Equity) (1) The Applicant contends that his misconduct was an isolated incident that he had recovered from in what was an otherwise honorable period of service. (2) The Applicant contends that the charges related to misconduct were inflated and misrepresented to achieve discharge. (Propriety) (3) The Applicant requests a change in the narrative reason for discharge (new narrative reason unspecified) as he contends that his separation did not meet the requirements established for Misconduct (Pattern of Misconduct).

Decision

Date: 20 1 1 0201            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 Applicant identified three decisional issues to the NDRB. The NDRB completed 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 enlisted in the Marine Corps at age 17 with a five - year contract as a Special Communications Signals Collection Operator without waivers for enlistment. His record of service contains three 6 105 retention-counseling warnings regarding his misconduct and possible discharge or punitive or administrative legal ramifications if he failed to take corrective action. Additionally, the Applicant’s record of service included two for the following o f the Uniform Code of Military Justice (UCMJ):

•         Article 86 - Unauthorized Absence - 4 s pecifications : Absent from his appointed place of duty
•         Article 9 2 - Failure to obey an order or regulation - 3 specifications : consumption of alcohol under the legal age limit, failure to complete directed alcohol rehabilitation training, and making unauthorized purchases with hi s government travel charge card
•         Article 107 - Making or uttering false official statements
•         Article 1 11 - Drunken or reckless operation of a motor vehicle
•         Article 121 - Larceny and wrongful appropriations .

Additionally, based on the stringent security requirements for handling of classified materials required of his Military Occupational Specialty and the special trust and confidence placed in Marines assigned this duty, the command locally suspended the Applicant ’ s access to classified materials and notified the Department of the Navy Central Adjudication Facility of the misconduct . This was a requirement directed by Secretary of the Navy Instruction 5510.30 (Department of the Navy (D ON ), Personnel Security Program (PSP) Instruction).

Based on the severity of the offenses committed by the Applicant, and the pattern of misconduct established by the Applicant while in service, command administratively processed for separation pursuant to paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN): Misconduct (Pattern of Misconduct). When notified of the administrative separation process using the notification procedure, the Applicant exercised right to consult with a qualified legal counsel, requested a hearing before an administrative board, but did not choose to submit a written statement to the Separation Authority.

The Applicant ’ s official service record documents that he was a combat veteran, having served in Operation IRAQI FREEDOM in the Al-Anbar P rovince of Iraq , and he was further awarded the Joint Service Achievement Award.

The NDRB is authorized to consider post-service factors 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. However, 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 in civilian life, subsequent to leaving the service. The Applicant provided post-service documentation for consideration by the NDRB to include a personal statement to the NDRB and letters of recommendation from various local officials and service members.

(Nondecisional Issues ) - The Applicant seeks relief in the form of an upgrade in the characterization of his service at discharge as well as a change in re-enlistment code in order to facilitate re-entry in to the Armed Services. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is prohibited from changing a reenlistment code. Only the Board for Correction of Navy Records can make changes to reenlistment codes. 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. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. The Applicant is directed to the Addendum , specifically, the paragraph regarding Reenlistment/RE-code.

: (Decisional) ( ) . The Applicant contends that his misconduct was an isolated incident in what was an otherwise honorable period of service and as such, warrants an upgrade in the characterization of his service at discharge . In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Despite a Marine’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s record of service contained two non-judicial punishments for violatio ns of UCMJ Articles 86, 92, 107, 111, and 121. Violations of Article 92, 107, 111, and 121 are considered serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for a more lenient administrative discharge .

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful , but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected the Applicant’s failure to meet the requirements of conduct expected of all Marines, regardless of grade and length of service, and falls far short of what is required for an upgrade to H onorable. Accordingly, t he NDRB determined an upgrade would be inappropriate . R elief denied.

: (Decisional) ( ) . The Applicant contends that the charges related to his misconduct were inflated and misrepresented to achieve discharge and an upgrade to his characterization of service at discharge is therefore warranted. The Applicant contends that the NJP s he received were not warranted and that the charges and specifications were inflated in order to punish the Applicant. The NDRB reviewed the Applicant’s discharge package, his record of NJPs, the evidence presented to the discharge hearing board, and the Applicant ’ s written appeal of his NJP. Based on the information contained in these documents, and the testimony of witnesses presented at the administrative discharge board, the NDRB determined that actions taken by the command were warranted and were consistent (and in most cases, more lenient ) with actions taken by other commands for the same or similar instances of misconduct. Furthermore, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.

The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of service, was honest and faithful, but that significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record . The Applicant’s service fail ed to meet the requirements of conduct expected of all Marines, regardless of grade and length of service, and falls short of what is required for an upgrade to an H onorable characterization of service at discharge. Accordingly, the NDRB determined that an upgrade would be inappropriate . Relief denied.

: (Decisional) ( ) . Applicant requests a change in the narrative reason for discharge (new narrative reason unspecified) . H e contends that his separation did not meet the requirements necessary to establish Misconduct (Pattern of Misconduct) as a basis for separation. While the Applicant may feel that his narrative reason for discharge was not proper, the evidence of record clearly reflects that the basis for separation met the established requirements pursuant to paragraph 6210.3 of the MARCORSEPMAN for M isconduct (P attern of M iscondu ct ) (2 NJPs and 3 retention- warning counselings ) . The Applicant was notified properly of the pending separation action and the chain of command’s recommendation that he receive an Under Other Than Honorable Conditions characterization of service at discharge. The Applicant elected his right to consult with a qualified counsel and to have an administrative hearing board to present his case for retention. The board was properly convened and evidence was presented. By a vote of 3-0, the discharge hearing board determined that by a preponderance of the evidence, the basis for separation - Misconduct (Pattern of Misconduct) - was satisfied. Furthermore, by a vote of 3-0, the hearing board determined that separation from the service was warranted and that the Applicant’s service warranted a characterization at discharge of General (Under Honorable Conditions).
The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Furthermore, the NDRB determined that the evidence of record substantiated the basis for discharge and the characterization of service received and that t his characterization of service was e quitable and consistent with the characterization of discharge s given others in similar circumstances.

Based on a review of the evidence and circumstances unique to this case, the NDRB determined there was sufficient evidence to support a basis for discharge due to Misconduct (Pattern of Misconduct) and that the characterization of service at discharge was more than equitable. Moreover, the NDRB determined that the Applicant’s characterization of service at discharge , as awarded, gave due consideration to the Applicant’s combat service . As such, the NDRB determined that the narrative reason for separation was proper and that an upgrade to an Honorable characterization of service is not warranted . R elief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB 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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