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USMC | DRB | 2010_Marine | MD1002352
Original file (MD1002352.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100929
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)       19950915 - 1996081 8     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960819     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19991015      H ighest Rank:
Length of Service : Y ea rs M on th 27 D a ys
Education Level:        AFQT: 41
MOS: 2512
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle MM SSDR

Period of UA : 19981009-19981103 ( 26 days )

NJP: 3
- 19980914 :      Article 86 (Absence without leave, UA from battalion working party, 10 specifications )
         Awarded: FOP RESTR EPD Suspended:

- 19990111 :      Article 86 (Absence without leave, UA, 1400 , 19981115 - 0845 , 19981116)
         Article 92 (Failure to obey order or regulation , 2 specifications )
                  Specification 1: Disobeyed an order from a warrant officer to stay in barracks until picked up
                  Specification 2: Driving on base with a suspended/revoked license
         Article 121 (Larceny, wrongfully appropriate roommate’s telephone access code making $85.00 in calls )
         Awarded: RIR (to E-2) FOP (2 months) RESTR EPD Suspended : FOP (1 month)

- 19990218:      Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, went
                  to Mas s in civilian clothes while in restriction status )
         Article 134 (Break restriction, 5 specifications )
         Awarded: RIR (to E-1) RESTR EPD (45 days) Suspended: RESTR EPD (15 days)
         * Suspension vacated 19990208 due to further misconduct

SCM: 1
- 19990506 :       Art icle 86 (Absence without leave, UA from company formation)
         Article 128 (Assault, unlawfully pushed a L ance C orporal into a window)
         Article 1 34 (Br eak restriction on 19990303)
          Sentence : FOP CONF 30 days (Dates NFIR)

SPCM: NONE                 CC: NONE

Retention Warning Counseling : 1
- 19970930 :       For inability to follow a direct order from his superiors. SNM fail ed to maintain the minimum clothing allowance .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors 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.       The Applicant seeks an upgrade to re-enlist in the Armed Forces.
2.       The Applicant seeks an upgrade for educational benefits.
3.       The Applicant contends the assault charge that led to his separation was blown out of proportion.

Decision

Date: 20 1 2 01 04            Location: Washington D.C .         R epresentation : Veterans Services

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 identified one decisional issue for the Board’s consideration. The Board conducted a thorough review of the Applicant’s service records to determine whether his discharge met the pertinent standards of propriety and equity. The Applicant’s record of service included one 6105 counseling warning for failure to maintain the minimum clothing alloweance (30 Sep 1997) and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 1 0 specifications) , Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer) , Article 92 (Failure to obey order or regulation , 2 specifications ), Article 121 (Larceny ), and Article 134 ( General A rticle, Break ing restriction, 5 specifications) . The record also reflected one summary court-martial for violations of the UCMJ: Article 86 (Absence without leave) , Article 128 (Assault) , and Article 134 (Break ing restriction ) . Based on the offenses committed by the Applicant, his command administratively processed him for separation due to a clear pattern of misconduct. When notified of a dministrative separation processing using the administrative board procedure on 24 May 1999 , the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The Applicant was separated from the Marine Corps on 15 Oct 1999 with an Under Other Than Honorable Conditions discharge due to Pattern of Misconduct.

: (Nondecisional) The Applicant seeks an upgrade to re-enlist in the Armed Forces. 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 B oard for Correction of Naval Records 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.
: (Nondecisional) The Applicant seeks an upgrade for educational benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends the assault charge that led to his separation was blown out of proportion. T he NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General ’ s Office. Allegation notwithstanding, the NDRB conducted a detailed review of the Applicant’s service records to determine whether his administrative separation met the pertinent standards for propriety and equity. While 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 assault charge that the Applicant refers to was adjudicated by a S ummary C ourt -M artial proceeding on 6 May 1999 . Since court-martial proceedings and subsequent findings are considered factual and a matter of record , the Board has no jurisdiction or ability to review, amend or overturn a court-martial finding. However, after careful review of the Applicant’s

record of service, it is clear that the Applicant’s repeated misconduct as evidenced by three NJPs, one S ummary C ourt -M artial, and one 6105 retention warning warranted administrative separation for a pattern of misconduct. Per the Marine Corps Separation and Retirement Manual, a n H onorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A G eneral ( U nder H onorable C onditions) 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 outweigh the positive aspects of the member’s service record. A discharge U nder O ther T han H onorable C onditions 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 N aval S ervice and is most applicable to the Applicant’s character of service. After careful and consideration of all the available evidence, the Board found that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Accordingly, the Board determined this issue did not provide a basis for which relief could be granted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation 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 for additional information.



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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