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USMC | DRB | 2010_Marine | MD1001589
Original file (MD1001589.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100615
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)       20061025 - 20061205     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20061206     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090807      H ighest Rank:
Length of Service : Y ea rs M on ths 02 D a ys
Education Level:        AFQT: 81
MOS: 6074
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle LoA (2)

NJP:
- 20081026 :      Articl e 91 (Insubordinate conduct toward a Staff Noncommissioned O fficer )
         Article 92 (Failure to obey order or regulation - 2 specifications)
         Article 95 ( R esisted apprehension by PMO)
          Article 117 (Provoking speeches or gestures toward PMO and MALS 36 Squadron Duty Officer)
          Article 128 ( Assault - As saulted PMO by spitting at them)
          Article 134 ( D runk and disorderly conduct )
         Awarded: RIR FOP RESTR Suspended: NONE

- 20081202 :      Article 86 ( Unauthorized absence from appointed place of duty)
         Article ( Insubordinate conduct toward a Staff Noncommissioned Officer )
          Article 134 (General article : SNM’s actions on 20081118 were against good order and discipline)
          Awarded : RIR FOP RESTR EPD Susp ended: FOP 1 Month (Vacated on 20090310)

- 20090310:      Article 86 ( Unauthorized absence from appointed place of duty - 2 specifications )
         Article 90 ( W illfully disobeying superior commissio ned officer - 2 specifications )
         Article 92 ( Failure to obey an order or regulation - 2 specifications )
         Article 107 (False official statement to a GySgt and MGySgt )
          Awarded: FOP RESTR EPD Suspension: FOP 1 Month
SCM: NONE        S PCM:    CC:     

Retention Warning Counseling : 5
- 20080723:      For being UA from ALSS morning training.
- 20081026:      For violations of A rticles 91, 92, 95, 117, 128, and 134.
- 20081202 :      For viola tion of A rticles 86, 91 , and 134
- 20090121:      For Al cohol Treatment and successful completion of treatment.
- 20090311 :      For violation of A rticles 86 x2, 90 x2, 92 x2, and 107.

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 P1900.16F), 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. The Applicant contends his discharge is inequitable , because it was based on statements of a S enior Noncommissioned Officer (S NCO ) at his Administrative Separation Board ( ASB ) .
Decision

Date : 20110913 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. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure 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 (Unauthorized absence from appointed place of duty - 3 specifications), Article 90 (Willfully disobeying superior commissioned officer - 2 specifications), Article (Insubordinate conduct toward a Staff Noncommissioned Officer - 2 specifications , by violating liberty order and failing to be present at a 0700 division formation), Article 92 (Failure to obey an order or regulation - 4 specifications , violated Liberty Campaign Plan by not having a liberty buddy x 2, not checking out of the barracks before leaving base, and f ailed to report to barracks at the proper time ), Article 95 (Resisted apprehension by PMO), Article 107 (False official statement to a GySgt and MGySgt that he was not at an enlisted club , which was substantiated by video surveillance and witness statement to MPs regarding an earlier incident), Article 117 (Provoking speeches or gestures by making vulgar and threatening remarks toward PMO and MALS 36 Squadron Duty Officer), Article 128 (Assault - Assaulted PMO by spitting at them), Article 134 (Drunk and disorderly conduct) and Article 134 (General article : SNM’s actions on 20081118 were against good order and discipline) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to request an administrative board . The Applicant appeared before the ASB on 1 June 2009. The ASB determined by a unanimous vote, 3-0, that the preponderance of the evidence supported the notification for separation, and the ASB recommended that the Applicant should be separated from the Marine Corps with a General (Under Honorable Conditions). The command and separating authority approved the ASB’s recommendations and discharged him accordingly.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on statements of a n SNCO at his ASB. After a thorough review of the records, supporting documents, facts, and circumstances of this case, the NDRB discerned there was no impropriety or inequity in the statements or conduct of the ASB. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. The Applicant was extremely fortunate to be given the characterization he received . Most Marines with his misconduct would have received an Under Other Than Honorable Conditions discharge. Based on the Applicant’s misconduct, it is apparent that the ASB gave the Applicant a break by recommending a General (Under Honorable Conditions) discharge. 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 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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