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USMC | DRB | 2010_Marine | MD1002115

Original file (MD1002115.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20100826

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)       19961018 - 19961020     Active:

Period of Service Under Review:
Date of Current Enlistment: 19961021     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19990126      H ighest Rank:
Length of Service : Y ea rs M on ths 06 D a ys
Education Level:        AFQT: 12
MOS: 5537
Proficiency/Conduct M arks (# of occasions): NFIR / NFIR          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle SS

Periods of CONF :

NJP: 4

- 19971118 :      Article 92 (Failure to obey order or regulation), 2 specifications
         Specification 1: Asleep at post
         Specification 2: Failure to follow orders and verbal instructions on utilizing government telephones for personal use
         Article 121 (Larceny or wrongful appropriation, made unauthorized long distance phone calls on a government telephone line in the amount of $76.26 )
         Awarded: FOP 2 months RESTR EPD Suspended: FOP 1 month

- 19971211 :      Article 134 (General article), 2 specifications
         Specification 1: Break restriction by going to Burger King and the Main Exchange on 19971119
         Specification 2: Break restriction by going to the Exchange Annex on 19971121
         Awarded : RIR FOP RESTR EPD Susp ended:

- 19980409:      Article 86 (Absence without leave, UA from field day formation on 19980114)
         Article 134 (Break restriction, departed the confines of MCB on 19980312)
         Awarded: RIR FOP RESTR EPD Suspended: NONE

- 19980430:      Article 92 (Failure to obey order or regulation, driving POV while on restriction)
         Article 134.77 (Fraudulently used state registration to obtain a visitor’s pass for another vehicle on 19980425)
         Article 134.102 (Break restriction by driving POV and leaving appointed place of duty while on restriction
         Awarded: FOP RESTR EPD Suspended: RESTR EPD

SCM: 1

- 19980915:     Article 86 (Absence without leave), 2 specifications
                  Specification 1: UA on 19980807
                  Specification 2: UA on 19980808
                  Article 87 (Missing movement )
                  Article 92 (Failure to obey order or regulation)
                  Article 111 (Drunken or reckless operation of a vehicle)
                  Awarded: NFIR

SPCM: NONE

CC: NONE

Retention Warning Counseling : 2

- 19970408 :       For belligerent and insubordinate attitude toward class leader by walking away from him while orders were being given, failure to let supervisors know of whereabouts, habitual tardiness at class formations, and unauthorized absence on 19970404 .

- 19970925 :       For failure to return on time from annual leave .

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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.       The Applicant contends he should have received a medical discharge.
2.       The Applicant contends his commanding officer notified him that he would be discharged honorably.
3.       The Applicant believes stress due to the amount of time he spent on restriction caused him to accept an Under Other Than Honorable Conditions characterization of service .

Decision

Date: 20 1 1 1104          Location: Washington D.C .         R epresentation : none

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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included two 6105 counseling warnings, four nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, UA from field day formation on 19980114) , Article 92 (Failure to obey order or regulation, 3 specifications [ Specification 1: Asleep at post ] , [ Specification 2: Failure to follow orders and verbal instructions on utilizing government telephones for personal use ], and [Specification 3: D riving POV while on restriction ] ) , Article 121 (Larceny or wrongful appropriation, made unauthorized long distance phone calls on a government telephone line in the amount of $76.26 ), and Article 134 (General article, 5 specifications [ Specification 1: Break restriction by going to Burger King and the Main Exchange on 19971119 ], [ Specification 2: Break restriction by going to the Exchan ge Annex on 19971121], [Specification 3: D eparted the confines of MCB on 19980312 while on restriction], [Specification 4: Fraudulently used state registration to obtain a visitor’s pass for another vehicle on 19980425 ], and [Specification 5: B reak restriction by driving POV and leaving appointed place of duty while on restriction ] ) , and one summary court-martial (SCM) for violations of the UCMJ: Article 86 (Absence without leave, 2 specifications [Specification 1: UA on 19980807] and [Specification 2: UA on 19980808]), Article 87 (Missing movement), Article 92 (Failure to obey order or regulation), and Article 111 (Drunken or reckless operation of a vehicle). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant contends he should have received a medical discharge. 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 B oard for Correction of Naval Records can grant this type of narrative reason change.

: (Decisional) ( ) . The Applicant contends his commanding officer notified him that he would be discharged honorably. The record did not support the Applicant’s contention. The record shows the Applicant was separated for significant , serious , and repetitive misconduct that could have resulted in confinement and punitive discharge if adjudicated at special court-martial. The Applicant submitted no documentation to support his contention or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs. The record shows the Applicant was properly notified and waived his rights to counsel, make a statement, and to request an administrative board. Relief denied.

: (Decisional) ( ) . The Applicant believes stress due to the amount of time he spent on restriction caused him to accept an Under Other Than Honorable Conditions characterization of service. The record did not support the Applicant’s contention and contained no evidence the Applicant’s restriction had caused him to suffer from any mental disorder that might have rendered him incapable of understanding his separation proceedings. The Applicant provided no documentation to support his contention or to overcome the NDRB’s presumption of regularity in the conduct of governmental affairs. An u pgrade would be inappropriate.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, 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, Automatic Upgrades, 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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USMC | DRB | 2010_Marine | MD1002115

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