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USMC | DRB | 2010_Marine | MD1000711
Original file (MD1000711.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100112
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)       19931124 - 19940103     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19940104     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970924      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 47
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 1995061 5 :      Article (Disobeying a lawful written order)
         Awarded: Suspended:

- 19950809 :      Article ( Willfully d isobeying a noncommissioned officer)
         Awarded: Suspended:

- 19960322 :      Article (Operate a motor vehicle while drunk)
         Awarded: Suspended:

- 19970522 :      Article ( U nauthorized Absence ) , 2 specifications
         Specification 1: 0730-1230, 19970428
         Specification 2: 0730-0930, 19970430
          Article 108 ( Loss, damage destruction of Government Property; specifically, did d amage the lock on
PFC’s room door by putting superglue sticks on it and attempt ing to light the stick s on fire)
          Article 109 ( Loss, damage, destruction to property other than military property of the U.S.; specifically –
d amaged a 1991 Toyota Celica by putting superglue in the door handle )
         Article (Assault)
          Awarded: , Suspended:

- 19970625 :      Article 2 specifications
         Specification 1: Disrespectful in language toward Cpl
         Specification 2: Willfully disobey a lawful order from a Cpl
          Awarded: Suspended:


SCM:     SPCM:    CC:

Retention Warning Counseling :

- 19970527 :       For frequent involvement with military authorities and minor incidents prejudicial to good order and discipline.

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 P1900.16E), 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.       Nondecisional issues : The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate a possible re-enlistment in the Armed Forces.

2.       Decisional issues : The Applicant did not identify any decisional issues related to the propriety or equity of the discharge he received.

Decision

 Date: 20 1 1 0324            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 NDRB 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 did not identif y any decisional issue s for the NDRB’s consideration ; however, t he NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered military service at age 21 on a four - year enlistment contract. His enlistment required waivers to the enlistment standards due to criminal misconduct and drug usage. The Applicant’s record of service includes one 6105 retention-counseling warning and five nonjudicial punishments for violations of the Uniform Code of Milit ary Justice (UCMJ) as follows:
•         Article 86 (Absent without leave; 2 separate specification )
•         Article 91 ( 3 Specifications; Insubordinate conduct toward and willfully disobeying a noncommissioned officer)
•         Article 92 ( F ailure to obey a lawful order or regulation )
•         Article 10 8 ( Loss, d amage, d estruction of Government property )
•         Article 109 (Loss, damage, destruction of property other than military property)
•         Article 111 ( Operating a motor vehicle while intoxicated)
•         Article 1 28 ( Assault ) .

T he Applicant completed 3 years and 8 months of his four- year obligated service contract. He was discharged from the Marine Corps due to Misconduct , specifically, having established a pattern of misconduct as defined by paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a pattern of misconduct; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted. On 10 September 1997 , the Separation Authority directed the Applicant be discharged for the reason as stated and that he further receive an RE-4 reenlistment code - not recommended for reenlistment.

The NDRB review ed the Applicant’s discharge package . The Applicant was advised of his rights pursuant to administrative separation. He acknowledged understanding of the basis for separation (Misconduct – Pattern of Misconduct) and the proposed recommendation for a characterization of service at discharge of Under Other Than Honorable Conditions. The Applicant chose to not exercise his right to consult with qualified military counsel, to not seek an administrative discharge hearing board to present his case, nor did he opt to submit written matters for the Separation Authorit y’s consideration. The Applicant provided a copy of his resume for the NDRB’s consideration, but did not submit any formal evidence or documentation to rebut any presumption of regularity in governmental affairs by the NDRB.

: (Nondecisional). The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate a possible re-enlistment in the Armed Forces. There is no requirement, or law, that grants re-characterization solely on the issue of reenlistment, reentry, or reinstatement into the Armed Services. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is furthermore, not authorized to change a reentry code. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. Additionally, 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 solely to a determination of the propriety and the equity of a discharge ; 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-codes.

: ( NDRB Board Issues) ( ) . The Applicant did not identify any decisional issues for the NDRB’s consideration; however, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety . In accordance with the M ARCORSEPMAN , a service member may be discharged involuntarily when their conduct or performance of duties meets one of the established reasons for separation. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . The Separation Authority and the Staff Judge Advocate reviewed the evidence as contained in the Applicant’ s recommendation for separation. They determined that the Applicant’s misconduct of record supported the conclusion that the Applicant had an established pattern of misconduct, that separation from the Naval Service was appropriate, and that a n Under Other Than Honorable Conditions discharge was warranted. The Applicant’s separation was administrative in nature, not punitive. Although his discharge was the result of misconduct, it was not part of a punitive punishment awarded at a trial by court-martial, which could have resulted in a substantially more harsh discharge.

A service member’s characterization of service is founded on the recognition of his performance and conduct and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. However, 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.

The Applicant’s record of performance and conduct reflected a documented pattern of misconduct. Additionally, the Applicant’s service record documents that he was counseled – formally – regarding possible separation if he failed to take corrective actions and comply with the expected standards of conduct of a Marine in the Unites States Nav al Service . After reviewing the Applicant ’ s official service record, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, documented conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service . As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that an upgrade would be inappropriate; accordingly, relief is 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 MISCONDUCT .

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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