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USMC | DRB | 2010_Marine | MD1000540
Original file (MD1000540.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20091203
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)       20050421 - 20050516     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20050517     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081209      H ighest Rank:
Length of Service : Y ea rs M on ths 23 D a ys
Education Level:        AFQT: 88
MOS: 0341
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle x2 (w/ 1 bronze star)

Periods of UA / CONF :

NJP:

- 20051206 :      Article , Failure to obey an order or regulation, 2 specifications .
         Specification 1: Underage drinking , 20051125.
         Specification 2: Reckless driving, 107 MPH in a 65 MPH posted speed limit zone.
         Awarded: Suspended:

- 20070103 :      Article , Failure to obey an order or regulation, ordered to clean up a mess by an NCO and refused.
         Awarded: Suspended:

- 20070314:      Article , Failure to obey an order or regulation, consumed alcohol while on Alpha increment.
         Article 111 , Drunken or re ckless operation of a vehicle, BAC NFIR.
         Awarded: RIR Suspended:

SCM:

- 20080530 :      Article , Insubordinate conduc t toward a noncommissioned officer, displayed a disrespectful attitude to a sergeant.
         Article 92, Failure to obey an order or regulation, refused a sergeant’s order to stand as a road guard.
         Sentence: 45 DAYS HARD LABOR

SPCM:    CC:




Retention Warning Counseling:

- 20070103 :       For corrective actions following NJP for violation of Article 92 of the UCMJ.

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

                   “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         
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

Applicant’s Issues

 1.        The Applicant seeks an upgrade for educational opportunities.
 2 .        The Applicant seeks an upgrade for service benefits.
 3.        The Applicant believes his post-service conduct is worthy of consideration.
4.       The Applicant believes he earned an Honorable discharge despite his misconduct.

Decision

Date: 20110113 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 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 warning , for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, 4 specifications) and Article 111 ( Drunken or reckless operation of a vehicle, BAC NFIR ); and for of the UCMJ: Article 91 ( Insubordinate conduct toward a noncommissioned officer, displayed a disrespectful attitude to a sergeant) and Article 92 (Failure to obey an order or regulation, refused a sergeant’s order to stand as a road guard). 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 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.

: ( Nond ecisional) The Applicant seeks an upgrade for 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.

I ssue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant believes his post-service conduct is worthy of consideration. The Applicant provided documentation that included: perfect attendance award from a trade school, completion certificate for fundamentals in climate control course, and character references from a professor, local businessman, an Army Reserve Staff Sergeant, and the Applicant’s former squad leader. The Applicant should be aware that submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis. While the Board applauds the Applicant’s post-service efforts, the Board determined the evidence of post-service conduct did not warrant an upgrade in his characterization of service. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant believes he earned an Honorable discharge despite his misconduct. Characterization of service at discharge is the recognition of a Marine’s performance and conduct during the entire enlistment. 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 service. A review of the

Applicant’s service record reflects a pattern of misconduct over 3 ½ years of service that included 3 NJPs, a retention warning, and a Summary Court-Martial. In addition to exhibiting a pattern of misconduct, the Applicant also committed serious offenses (Articles 91, 92, and 111) that could have resulted in a punitive discharge (i.e., Bad Conduct) if awarded at a General or Special Court-Martial. His command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.

The NDRB recognizes that serving in the Marine Corps is very challenging, particularly serving in combat. Most Marines, however, serve honorably and therefore earn Honorable discharges. In fairness to those Marines, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. W ith respect to the Applicant’s statement explaining his misconduct, t he Applicant bears the burden of overcoming th e presumption of governmental regularity and appropriate action through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any documented evidence for the NDRB’s consideration, to support the contention the Applicant deserves an upgrade in characterization. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The NDRB 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 service member and the awarded characterization, as issued, was appropriate and was equitable. 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 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, Automatic Upgrades, 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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