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USMC | DRB | 2010_Marine | MD1000548
Original file (MD1000548.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)       20021029 - 20030527     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20030528     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070912      H ighest Rank:
Length of Service : Y ea rs M on ths 15 D a y ( s )
Education Level:        AFQT: 92
MOS: 6821
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF : 2 0050727-20050728 (2)
NJP:

- 20060525 :      Article , Failure to obey an order or regulation
         Awarded: Suspended:

- 20060912 :      Article , Failure to obey an order or regulation
         Article 95, Resistance, flight, breach of arrest and escape
         Article 111, Drunken or reckless operation of a vehicle, aircraft, or vessel
          Awarded: Suspended:

- 20070802 :      Article , Wrongful use of a controlled substance ( marijuana )
         Awarded: Suspended:

SCM:

- 20070618 :      Article , Failure to obey an order or regulation
         Sentence: HARD LABOR 45 Days

SPCM:    CC:

Retention Warning Counseling:

- 20050328 :      For failure to exercise good judgment by disobeying a lawful order which led you to being absent without leave. You were instructed prior to going on annual leave that you were to return to duty at 0730 on 30 December 2004. Your leave papers required you to return to your appointed place of duty at that time. You failed to do so when you returned to your work section at approximately 0730.

- 20060605 :      For NJP received on 25 May 2006 for violation of Article 92 of the UCMJ. Specifically, for having knowledge of a lawful order not to go to Tijuana, Mexico without an out of bounds chit, an order in which it was your duty to obey. Failure to obey resulted in your apprehension by the Tijuana police.

- 20060912 :      For NJP received on 12 Sep tember 2006 for violation s of the UCMJ . At 0121 on 5 Aug ust 2006 , you failed to obey BO P5000.2J by driving aboard MCB Camp Pendleton with suspended driving pr i v i leges f rom the state of California for felony evasion on 12 Au g 2005. At 0121 on 5 Aug ust 2006, you did resist apprehension by fleeing the scene when military police attempted to mak e a routine traffic stop. At 0121 on 5 Aug ust 2006 , you did operate a motorcycle in a reckless manner by speeding in attempts to evad e military police.

- 20061106 :     For failing to exercise good judgment by checking in for restriction 30 minutes earlier than the time    prescribed. This caused him to be absent from squadron PT. On 17 Sep tember 2006, he failed to obey       restriction orders by riding in a POV and failed to obey again on 27 Sep tember 06 by operating a         motorcycle, while on 45 days restriction.

- 20070625 :      For summary court-martial received on 18 June 2007 for violation of Article 92 of the UCMJ. You were caught driving on a two-year base suspension.

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.       Applicant w ants to use the GI Bill to pay for college.
 2.       The Applicant alludes that since the court-martial that led to his discharge was overturned, his discharge should be upgraded.
3 .       The Applicant contends he was denied access to psychological and medical attention.

Decision

 Date: 20 1 1 0128            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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Applicant’s record of service included 6105 counseling warnings and non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 2 specifications), Article 95 ( Resistance, flight, breach of arrest and escape, 1 s pecification) , Article 111 ( Drunken or reckless operation of a vehicle, aircraft, or vessel, 1 s pecification) , and Article 112a (Wrongful use of a controlled substance, marijuana) . It also included summary court-martial for of the UCMJ: Article 92 (Failure to obey order or regulation, 1 sp ecification) . The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Marine Corps and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 28 October 2002 . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a n administrative board .

The Applicant provided a statement along with the DD 293 . He submitted no other documentation for the Board ’ s consideration.
: (Non - decisional) The Applicant wants to use the GI Bill to pay for college . The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no law , or requirement , to grant re-characterization of a discharge base d solely on the issue of obtaining v eterans' benefits, and this issue does not serve to provide a foundation upon which the Board can grant relief. T he Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational benefits. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant alludes that since the court-martial that led to his discharge was overturned , his discharge should be upgraded . In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case , and he provided no evidence to support his contention that the court-martial was overturned. The Board conducted a thorough review of the Applicant’s service record and found no indication of his court-martial conviction being overturned. The Applicant was separated for a pattern of misconduct, not for a court-martial conviction. Therefore, even if he could show that the court-martial was overturned , his numerous occasions of recorded misconduct would still exceed the minimum requirement to warrant separation for a pattern of misconduct. Relief denied.




: (Decisional) ( ) . The Applicant contends he was denied access to psychological and medical assistance. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case , and he provided no evidence to support his contention that he was denied psychological and medical attention . The Board conducted a thorough review of the Applicant’s service record and found no indication of him being denied medical attention. 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, Automatic Upgrades, 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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