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USMC | DRB | 2010_Marine | MD1001146
Original file (MD1001146.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100406
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)       20041116 - 20050724     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050725     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090724      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 44
MOS: 2141
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , ,

Periods of UA / CONF : UA 0700 – 1810, 20080706

NJP:

- 20080811 :      Article (Absence without leave; s pecifically, absented himself from his appointed place of duty (HMS Tobruk), without authority, from 0700 – 1810, 20080706)
         Article 92 (Failure to obey a lawful order; specifically, failed to obey lawful order of a n NCO on 20080629)
         Awarded :        Susp ended:

- 20070918 :       Extracted from Marine Corps Total Force System Pro/Con History and SRB/Pg11 - 6105 Entry dtd 20080811. Specific violations of UCMJ not found.
         Awarded: Reduction in Rank, no other punishment found in record.

- 20070731       Pro/Con Reporting Period: (exact date not determined) . Extracted from Marine Corps Total Force System Pro/Con History and SRB/Pg 11 – 6105 Entry Dtd 20080811.
         Specific violations of UCMJ not found in record.
         Awarded: Not found in record.

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080811 : Counseled in accordance with paragraph 6105 of the MARCORSEPMAN concerning your following deficiencies: Pattern of Misconduct, based on your three (3) Non-Judicial Punishments for violating numerous articles of the UCMJ. I understand that I am being processed for administrative separation due to a Pattern of Misconduct.


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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 .       Decisional issues : The Applicant contends that he warranted an Honorable characterization of service at discharge vice the General (Under Honorable Conditions) discharge characterization that he received if his proficiency and conduct marks were corrected administratively .

Decision

Date: 20 1 1 04 29         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 identified one decisional issue for the NDRB’s consideration. The NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant ’ s record of service includes entry into the Marine Corps with a waiver for pre-service drug use (marijuana) and an adjudicated serious law offense. In service, the Applicant’s service record reflected one 6105 retention-counseling warning for an established pattern of misconduct as evidenced by his three nonjudicial punishments in one enlistment with a further advisement h e was being processed for administrative separation . The Applicant’s service record was incomplete in that it did not contain official service record copies of two of the three documented nonjudicial punishments in his enlistment; however, the service record does reflect two separate administrative reductions in rank.

Decisional Issue ( ) . The Applicant contends that he warranted an Honorable characterization of service at discharge vice the General (Under Honorable Conditions) discharge characterization that he received if his proficiency and conduct marks were corrected administratively. A n Honorable discharge is warranted when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel. Most service members serve honorably and therefore earn their honorable discharges. In fairness to those service members, commanders and separation authorities are directed to ensure that undeserving Marines receive no higher characterization than is due. Accordingly, a characterization of service as General (Under Honorable Conditions) 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.

Standards of performance and conduct, as determined by MCO P1610.7 series (Performance Evaluation System), MCO P1070.12 series (Individual Records Administration Manual (IRAM)), and the customs of the service, form the primary basis for determining a Marine ’ s characterization of service. The established minimum acceptable average proficiency and conduct markings for an Honorable characterization of service during an enlistment are 3.0 and 4.0, respectively. Failure of a Marine to achieve either of these standards is evidence of significant negative aspects, outweighing all but the most meritorious military records. The Applicant’s official service record reflects three nonjudicial punishments and a formal advisement that the command was recommending his involuntary administrative separation due to Misconduct (Pattern of Misconduct) .

The Applicant received Pro/Con marks of 4.4/4.4 from his command upon his separation on terminal leave. Upon final discharge, he received 4.0/4.0 pro/cons. Over a period of twelve proficiency and conduct markings, the Applicant’s overall average in enlistment proficiency and conduct markings was 4.1/3.9. The NDRB recalculated the Applicant’s in service average after removing the last set of marks received (4.0/4.0) as they were not command - issued and were not necessary or proper . W ith the last set of marks removed, the Applicant’s in - service markings remained 4.1 for proficiency and 3.9 for conduct. As such, the Applicant ’ s overall in - service conduct was below the service established requirement of 4.0 for an Honorable characterization of service , thereby warranting the awarding of a General (Under Honorable Conditions) characterization of service at discharge.

The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the character of his service at discharge, did reflect a significant departure from that conduct expected of a service member as reflected in his assigned proficiency and conduct average marks in service. Therefore, the awarded characterization of service at discharge was both proper and equitable; an upgrade would be inappropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service and his service and m edical record entries, the NDRB determined that 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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