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USMC | DRB | 2011_Marine | MD1100084
Original file (MD1100084.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101013
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)       19921124 - 19930208     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19930209     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19961223      H ighest Rank:
Length of Service : Y ea rs M on ths 15 D a ys
Education Level:        AFQT: 70
MOS: 6057
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle EX NDSM LOA SSDR CO C

Periods of CONF :

NJP: 3
- 19950519 :      Article 86 (Absence without leave, UA, 19950515 - 19950516, 1 day)
         Awarded: EPD Suspended:

- 19950614 :      Article 86 (Absence without leave, UA, 19950613 - 19950614, 1 day)
         Awarded: RIR FOP RESTR EPD Susp ended:

- 19960905:      Article 87 (Missing movement)
         Article 92 (Failure to obey order or regulation)
         Article 111 (Drunken or reckless operation of a vehicle)
         Article 134 (Drunkenness, incapacitation for performance of duties through prior indulgence in intoxicating liquor)
         Awarded : RIR FOP RESTR Suspended: FOP RESTR
SCM: NONE        SPCM: NONE        CC: NONE

Retention Warning Counseling : 5
- 19941004 :       For assignment to the weight control program

- 19950504 :       For failure to make adequate progress and meet weight goal during initial assignment to weight control program

- 19950614 :       For unauthorized absence from 0701 19950515 – 0700 19950516

- 19950614:      For unauthorized absence from 0701 19950613 – 0700 19950614

- 19950921:      For failure to make satisfactory progress in initial assignment to weight control

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 18 August 1995 until 30 January 1997.

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 was improper, because it was based on unfair and biased judgment on two separate incidents.
2.       The Applicant contends his good service ou tweighs his misconduct.

Decision

 Date: 20 1 2 0119            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 five 6 105 counseling warnings and three nonjudicial punishments (NJPs) for violations of the U niform Code of Military Justice (UCMJ): Article 86 (Absence without leave, UA, 2 specifications ) , Article 87 (Missing movement) , A rticle 92 (Failure to obey order or regulation) , Article 111 (Drunken or reckless operation of a vehicle) , and   Article 134 (Drunkenness, incapacitation for performance of duties through prior indulgence in intoxicating liquor) . Based on the offenses committed by the Applicant, his command administratively processed hi m for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel and submit a written statement . However, the Applicant’s DD Form 214 has a separation code of HKN1 , which indicates he waived his right to request an administrative board .

: (Decisional) ( ) . The Applicant contends his discharge was improper, because it was based on unfair and biased judgment on two separate incidents. The record shows the Applicant had significant misconduct , including four serious offenses (violation of Articles 87, 92, 111, and 134) that warranted confinement and a punitive discharge if adjudicated at special court-martial. The Applicant submitted no documentation to support his contention or to establish mitigation for his misconduct of record. The NDRB found no evidence of impropriety or inequity in the Applicant’s separation proceedings. Further, the NDRB found the Applicant’s command was lenient in not pursuing a special court-martial with the associated potential for much harsher punishment. In light of the serious and repeated offenses, an upgrade would be inappropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends his good service outweighs his misconduct. Certain serious offenses warrant separation in order to maintain proper order and discipline. While the Applicant was separated for minor disciplinary infractions, the NDRB noted he was found guilty of four serious offenses at NJP . Missing movement, failure to obey an order or regulation, drunken operation of a vehicle, and drunkenness/incapacitation for duty each warrant separation and could have resulted in confinement and punitive discharge if adjudicated at special court-martial. The NDRB found the Applicant’s separation was proper and equitable. An u pgrade would be inappropriate. Relief denied.

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 . 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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