Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1100149
Original file (MD1100149.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101022
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)       19970909 - 19971020     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19971021     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010209      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 76
MOS: 0842
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA/ CONF : UA /IHCA 20001030 - 20010131 (94 days)       CONF 20000515 - 20000608 (24 days)

NJP:
- 19991222 :      Article (Forgery , o/o 19991206 )
         Awarded: Suspended:

SCM:
- 20000515 :      Article (UA, 4 specifications )
                  Specification 1 : Failed to go to his appointed place of dut y, B ldg 560 at 1000 , 20000222
                  Specification 2 : Failed to go to his appointed place of duty, Bl d g 560 at 0630 , 20000224
                  Specification 3 : Failed to go to his appointed place of duty, B ld g 560 at 0700 , 20000227
                  Specification 4 : Failed to go to his appointed place of duty, B ld g 1829 at 0700 , 20000301
         Article (Insubordinate conduct toward noncommissioned officer or petty officer, 4 specifications )
         Specification 1: Failed to attend a field operational exercise , 20000227
         Specification 2: D isrespectful in language toward Sgt by saying , “ T his is bulls hit, ” 20000225
         Specification 3: Willfully disobey an order to sweep the parking area of the compound , 20000307
         Specific ation 4: D isrespectful in language toward Cpl by saying , “Yes I am, I f ucking am , ” 20000307
         Article (Provoking speeches or gestures toward Cpl, stating “Fuck you , I’m not going, ” 20000225 )
         Sentence : RIR (to E-2) CONF30 days Hard Labor ( 20000515 - 20000608, 24 days)

SPCM:             CC:

Retention Warning Counseling :

- 19980831:      For indebtedness to Army and Air F orce Exchange System (AAFES) and uttering worthless checks.
 - 19990406 :       For apprehen sion by military authorities for misconduct (24 Jan 1999) . My lack of obedience to orders and discipline is inexcusable and will not be tolerated .


Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ 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 .

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 s 91 and 123a .


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

Applicant’s Issues

 1.       Applicant seeks a discharge upgrade to increase employment opportunities.
2.       Applicant contends his discharge was inequitable, because it was based on an isolated incident in three years of otherwise honorable service.

Decision

 Date: 20 1 2 01 26            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 g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied one decisional issue for the Board’s consideration . T he Board complete d 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 retention warning for apprehension by military authorities and lack of obedience to orders and discipline. The record also reflected for o f the Uniform Code of Military Justice (UCMJ): Article 123a ( Forgery , o/o 6 Dec 1999 ) and for of the UCMJ: Article 86 ( Absence without leave , 4 specifications ) , Article 9 1 (Insubordinate conduct toward noncommissioned officer, 4 specifications) , and Article 117 ( Provoking speech or gestures). The record also revealed that the Applicant was in confinement in the hands of civil authorities from 20001030 - 20010131 (94 days). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the procedure, the Applicant failed to respond in writing, which resulted in a waiver of his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . In his endorsement of the Applicant’s administrative separation package, the Commanding Officer of 10th Marines stated , “According to the report compiled by the Criminal Investigative Service, he has had a longstanding history of public abasement, voyeurism, and further illicit sexual degradation. (The Applicant’s) actions have brought great disgrace upon himself and the Marine Corps, and merit discharge as soon as is practicable . ” The Applicant was separated from the Marine Corps on 9 Feb 2001 with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).

: (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his discharge was inequitable, because it was based on an isolated incident in three years of otherwise honorable service. Despite a service member’s prior record of se rvice, certain serious offenses warrant separation from the N aval S ervice in order to maintain proper order and discipline. Since an administrative discharge is not punishment, the decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or nonjudicial punishment. The characterization of service is a description of the total service provided during the member’s enlistment. A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. An Under Other Than Honorable Conditions discharge 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 Naval Service . In addition to the civil offense(s) he committed (for which he was in the hands of civil authorities for 94 days), t he Applicant’s service contained violations of UCMJ Articles 91, 117, and 123a , constitutes “commission of a serious offense”, the discharge basis in this case , and a pattern of misconduct . These specific violation s are punishable by a B ad C onduct or D ishonorable D ischarge and up to 5 years of imprisonment if adjudicated at trial

by courts-martial. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, especially considering his grade and length of service, and f alls well short of w hat is required for an upgrade in the characterization of service. His multiple instances of misconduct during his brief service fully warranted an Under Other Than 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 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

Similar Decisions

  • USMC | DRB | 2011_Marine | MD1100854

    Original file (MD1100854.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.Per the Marine Corps Separation and Retirement Manual, an Honorable characterization upon expiration of active service is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. ”...

  • NAVY | DRB | 2015_Navy | ND1501053

    Original file (ND1501053.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT. ” Additional Reviews : After a...

  • USMC | DRB | 2012_Marine | MD1200544

    Original file (MD1200544.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2009_Marine | MD0901570

    Original file (MD0901570.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2011_Marine | MD1100750

    Original file (MD1100750.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2011_Marine | MD1101361

    Original file (MD1101361.rtf) Auto-classification: Denied

    On 4 November 2008, the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Pattern of Misconduct. 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...

  • USMC | DRB | 2006_Marine | MD0601125

    Original file (MD0601125.rtf) Auto-classification: Denied

    20010501: Applicant from unauthorized absence 0800 (surrendered).20010806: NJP for violation(s) of UCMJ: Article 86: UA (AWOL) from 0730, 20010301 to 0123, 20010502, Award: Forfeiture of $584.00 for 2 months, extra duty for 45 days. UNDER OTHER THAN HONORABLE CONDITIONS (20020808) SJA review (date): (20020814)Separation Authority (date): COMMANDING GENERAL, 2D FORCE SERVICE SUPPORT GROUP (20020816)Narrative Reason directed: MISCONDUCT DUE TO A Characterization directed: Date Applicant...

  • USMC | DRB | 2006_Marine | MD0601128

    Original file (MD0601128.rtf) Auto-classification: Denied

    Summary of Service: Inactive: USMCR (DEP) 20010817 - 20010916 Active: Period of Service Under Review: Date of Enlistment: 20010917Years Contracted:; Extension: Date of Discharge: 20040416Length of Service Active: 02 Yrs 07Mths00 Dys (Does not exclude lost time) Time Lost During This Period: Education Level: Age at this Enlistment: AFQT: 43 MOS: 3043Highest Rank: Proficiency/Conduct marks (# of occasions): NONE FOUND IN RECORDAwards and Decorations (as listed on the DD Form 214):RIFLE...

  • NAVY | DRB | 2007_Navy | ND0700447

    Original file (ND0700447.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of service. After a thorough review of the available evidence, to include the applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found that Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative errors on the...

  • USMC | DRB | 2010_Marine | MD1002111

    Original file (MD1002111.rtf) Auto-classification: Denied

    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 . ” 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...