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USMC | DRB | 2010_Marine | MD1001155
Original file (MD1001155.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100407
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)       20060103 - 20060604     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060605     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090806      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 54
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20070518 :      Article (Failure to obey a lawful order or regulation , specifically, violation of restriction orders and barracks orders)
         Article (False official statement , specifically, false official statement to the military police, MCB, CPEN)
         Article 108 (Military property, loss, damage, destruction , specifically, spray-painting graffiti on MCB, CPEN roadway)
         Awarded: (Pvt), (45x45), (2/3 pay for 2 months)
         Suspended:

- 20080227 :      Article (Failure to obey a lawful order or regulation , specifically, driving under the influence of alcohol under the age of 21 – MCO 1700.22E)
         Article (False official statement , specifically, with intent to deceive, verbal a nd written statement to the Co 1stSgt that was known to be false)
         Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel – DISMISSED)
          Awarded : (60 days)      Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080227 :       For recent NJP for violation of Articles 92 and 107 of the UCMJ. Advised that failure to take corrective action may result in administrative separation or limitation on further service.



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 and Present, paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 and Article 107 .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 Decisional issues : The Applicant contends that she warrants an upgrade in the characterization of her service at discharge because her Pro/Cons were above 4.0/4.0 if an administrative oversight is corrected. Applicant further contends that she was a go o d Marine who made a few bad decisions early on, but corrected her deficiencies; as such, she contends that she warrants a reconsideration of the characterization of her service.

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 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. In addition to reviewing the Applicant’s stated issue, the NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the Applicant’s discharge met the pertinent standards of equity and propriety.

The Applicant enlisted at age 18 (17 at time of joining the Delayed Entry Program), without any waivers, for a 4-year enlistment with a 24-month extension. She enlisted with a guarantee of Motor Transportation training. The Applicant completed basic recruit training and was assigned to the 1st Marine Division at the time of discharge. The Applicant’s record of service includes one 6105 retention-counseling warning and two nonjudicial punishment s for violations of the Uniform Code of Military Justice (UCMJ):

•         Article 92 ( Failure to obey a lawful order or regulation - 2 separate specifications; violation of restriction policy and barracks orders and driving under the influence of alcohol, under the age of 21 in violation of MCO 1700.22E)
•         Article 107 ( False official statement - 2 separate specifications; false official statement to the MCB CPEN Military Police and false official statement, verbally and in writing, to the Company 1stSgt)
•         Article 109 (Military Property, loss, damage, destruction; spray-painting graffiti on MCB CPEN roadway) .

The NDRB review ed the Applicant’s administrative separation package to determine whether the Applicant elected h er right to consult with a qualified counsel or to submit a written statement to the separation authority. The Applicant was notified of her command’s intent to separate her involuntarily by reason of Convenience of the Government, Condition N ot a D isability resultant from a medical diagnosis of p lantar f asciitis , non-resolving, which prevented her from conducting physical training, field training, deploying, and other associated activities that we re required by her military occupation skill. The Applicant was notified that the least favorable characterization of her service at discharge that she could receive was General (Under Honorable Conditions) and that the Commander recommended that she receive a General (Under Honorable Conditions) characterization of her service upon discharge. The Applicant was advised of this and her rights in writing; she elected to waive her right to consult with qualified legal counsel and elected to not submit written matters for the Separation Authorit y ’ s consideration.

The Applicant’s service record documents that s he was counseled and provided opportunit ies t o under take corrective actions prior to being recommended for separation. The Applicant’s application for enlistment and h er pre-service medical history do not include any record of pre-service treatment for similar conditions and indicate a normal arch without issue in her feet. The Applicant did not provide the NDRB with any documentation that was not already included in h er official military file or in Navy and Marine Corps regulations.



(Decisional Issue ) ( ) . The Applicant contends that she warrants an upgrade in the characterization of her service at discharge because her Pro/Cons were above 4.0/4.0 if an administrative oversight is corrected. Applicant further contends that she was a good Marine who made a few bad decisions early on, but corrected her deficiencies; as such, she contends that she warrants a reconsideration of the characterization of her service.

 The Applicant was involuntarily separated pursuant to a Convenience of the Government, Condition Not a Disability separation; s he was not discharged for misconduct based on a single incident, a pattern of misconduct, or minor disciplinary infractions. The separation authority for the Applicant’s discharge was paragraph 6203.2 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) , which addresses physical or behavioral conditions that impair a member ’ s performance but do not amount to a physical disability. Though these conditions do not amount to a disability, they affect the member’s ability to serve, or the potential for continued naval service. Based on the appropriately credentialed medical health care provider’s diagnosis, coupled with the formal retention counseling, the NDRB determined the Applicant met the requirements for separation by reason of convenience of the government – condition not a disability due to physical or mental condition. The separation was proper as issued and no change to the narrative reason for separation is warranted; relief based on issues of propriety is denied.

In accordance with the guidance provided for separation for a Condition, Not a Disability, an Honorable characterization of service is directed , unless a General (Under Honorable Conditions) characterization 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.

The Applicant’s record of service contains no evidence of conduct so otherwise meritorious that any characterization of discharge less than Honorable would be clearly inappropriate. The Applicant’s service record documents that the she received two nonjudicial punishment s for misconduct resulting from h er violation of orders and providing false official statements . Additiona l ly, her proficiency and conduct markings evidence a pattern of less than fully honorable service as defined by paragraph 1004 of the MARCORSEPMAN. The Applicant contends that her final proficiency and conduct markings were not properly reflected in her final in - service average; this point was correct. The command recommended separation proficiency and conduct markings of 4.3 and 4.3, respectively. The NDRB removed the administrative markings at separation of 4.0/4.0 and recalculated the in-service average using the command - directed pro/cons; the resulting in-service average remained 4.1/3.9, warranting a General (Under Honorable Conditions) characterization of service if proficiency and conduct markings were the only factor in determining her discharge characterization. However, because the Applicant was involuntarily separated before successfully completing her obligated service, the Separation Authority determines the overall characterization of service based on a review of her service record; this review included evidence of two nonjudicial punishments and a retention counseling warning in three years of service, without any meritorious service or personal awards recognition.

The NDRB determined that the Applicant’s conduct of record was honest and faithful, but that significant negative aspects of the member’s conduct did outweigh the positive aspects and that s he was not separated due to incident s of misconduct, but for the convenience of the government due to a condition (physical or mental), which was not a disability. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the Applicant’s service at discharge. By a vote of 5-0, the NDRB determined that the characterization of service received at discharge was warranted and that an upgrade would be inappropriate. Relief based on inequity 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 Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain CONDITION NOT A DISABILITY. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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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