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USMC | DRB | 2010_Marine | MD1000696
Original file (MD1000696.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100106
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)       19950707 - 19950718     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19950719     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19990517      H ighest Rank:
Length of Service : Y ea rs M on th s 29 D a ys
Education Level:        AFQT: 31
MOS: 3051
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      ,

Periods of CONF :

NJP:

- 19970205 :      Article ( Failure to obey an order or regulation ), 2 specifications
         Specification 1: Told to go to his room and ignored the order
         Specification 2: Exited a posted fire exit
         Article 128 (Assault) , Punched and kicked a private first class in the head
         Article 91 ( Insubordinate conduct toward a noncommissioned officer ), Disr espectful in language toward a C orporal
         Awarded: Suspended: Suspension vacated 19970211

- 19970220 :      Article (Larceny and wrongful appropriation ) , Stole $405 cash from a fellow Marine
         Article (False official statement) , Denied the theft to NCIS investigators in official statement
         Awarded: Suspended:

- 19990315 :      Article (Absence without leave ) , 2 specifications
          Specification 1: UA, Work section 1200, 199 9 0228
         Specification 2: UA, Formation 0630, 19990301
         Awarded: Suspended:

SCM:    

SPCM:   

Civilian Convictions: 1
 - 19980917:      For Driving Under the Influence of Alcohol (DUI) (0.08% BAC) in the State of California. [Extracted from Pg 11 counseling in Service Record Book]

Retention Warning Counseling:

- 19970218 :      For in accordance with MCO P1900.16 par 6105 that I may be processed for separation by falling under one of the following two categories: Minor disciplinary actions (documented series of at least 3 minor disciplinary infractions) during current enlistment which have/would have been disciplined under Article 15, nonjudicial punishment. Pattern of misconduct (pattern of more serious infractions including 2 or more serious infractions) or instances of conduct prejudicial to good order and discipline within one enlistment.

- 19981116 :      For your civilian DUI with a BAC of .08% during the period of 19980917 at a time approximately 2000.

NDRB Documentary Review Conducted (date):        20000928
NDRB Documentary Review Docket Number:   MD00-00415
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:

         “ MISCONDUCT ”
         “ NONE ”

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 P1900.16E), effective
31 January 1997 until 31 August 2001.

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 a c hange , because he feels his discharge was too harsh and it is in equitable to continue to suffer the adverse effects of an Under O ther T han H onorable C onditions discharge.

2. The Applicant believes his post-service conduct is worthy of consideration.
Decision

Date: 20110110 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 . T he Board complete d a thorough review of the circumstances that led to discharge , and the discharge process , to ensure the 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 86 ( Absence without leave, 2 specifications of failure go to appointed place of duty at specified time ) ; Article 91 (Insubordinate conduct toward a noncommissioned officer - disrespectful in language toward a C orporal) ; Article 92 (Failure to obey an order or regulation , 2 specifications ) ; Article 107 (False official statement) ; Article 121 (Larceny and wrongful appropriation of $405 from a fellow Marine) ; and Article 128 (Assault - punched and kicked a P rivate F irst C lass in his head). 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 S eparati on A uthority, and to request an administrative board.

The Applicant exercised his right to a personal hearing and was represented by Counsel from the American Legion. At the personal hearing board, the Applicant amended his original DD Form 293 submission to reflect a request for consideration of upgrading his characterization at discharge to General (Under Honorable Conditions) and presented two issues for the NDRB’s consideration.

: (D ecisional) ( Propriety/ E quity) RELIEF WARRANTED. The Applicant seeks a change in the characterization of his service , because he feels his discharge was too harsh and it is inequitable to continue to suffer the adverse effects of an Under O ther T han H onorable C onditions discharge. The Applicant’s record of service reflects minor disciplinary infractions while serving on a one-year assignment to Okinawa, Japan; they were determined to be minor and properly punishable at commanding officer’s nonjudicial punishment proceedings. The A pplicant was formally counseled , was retained , and subsequently was authorized to execute Permanent Change of Station orders to CONUS. After approximately 17 months of service in CONUS, the Applicant was arrested and convicted in a civilian court of d riving under the influence of a lcohol (DUI) . This offense would be chargeable under military jurisdiction as a violation of Article 111 of the UCMJ , a serious offense, warranting a Bad Conduct discharge and confinement if adjudged in a trial by court martial. In accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), a service member may be separated based on the commission of a serious military or civilian offense when the offense warrants separation and the offense would warrant a punitive discharge. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. The Applicant was convicted in civilian court for driving under the influence of alcohol ; the command could have chosen to separate the member for the commission of a serious offense , but did not. Finally, the Applicant received a nonjudicial punishment due to violating Article 86 of the UCMJ in that he failed to be at a prescribed time and place for duty. Subsequent to the NJP for violation of Article 86, the Applicant was recommended for administrative separation due to minor disciplinary infractions pursuant to paragraph 6210.2 of the MARCORSEPMAN. After a thorough review of the Applicant ’ s service record and the Applicant’s personal testimony , the NDRB determined that the narrative reason for discharge, as issued, was proper; no relief is warranted.

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. 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.

After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his testimony, the testimony of his witness, and the individual facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service generally did not meet the standard of acceptable conduct and performance for N aval personnel to warrant an Honorable characterization. Moreover, t he NDRB determined the Applicant did not engage in acts or omissions that constitute a significant departure from the conduct expected of member s of the Naval Service and that his conduct had been honest and faithful but that significant negative aspects of his conduct or performance did outweigh the positive aspects of his military record. T herefore, the NDRB determined that relief is warranted based on equitable grounds. By majority vote, the NDRB determined that a change to the Applicant’s discharge characterization of service from Under Other Than Honorable Conditions to General (Under Honorable Conditions) was appropriate and is warranted.

: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. The Applicant provided documentation that included an associate s degree diploma , honor roll certificate s , a dean’s list certificate, and proof of continuous employment since discharge. 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 NDRB on a case-by-case basis . The NDRB considers 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. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief . Accordingly, relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the discharge process, and testimony from the Applicant and witnesses, the Board found the discharge was proper but not equitable. Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) ; however, the narrative reason for separation shall remain .


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

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