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USMC | DRB | 2011_Marine | MD1100299

Original file (MD1100299.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101116

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)       20021106 - 20030728     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030729     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20061103      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 74
MOS: 4421
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA :

NJP:

- 20051006 :      Article (Failure to obey lawful order or regulation , 3 specifications )
         Specification 1: Willfully and intentionally no t signing out in the liberty log book
         Specification 2: Violate MCBJO 1050.6 by not returning back to Camp Foster by 2400 as directed and remained absent until 1045, 20050904
         Specification 3: Violate MCBJO P3000.1C w/chl by leaving Camp Foster during Typhoon conditions and not returning when ordered to do so by his NCOIC
         Awarded : Susp ended:

SCM:

- 20060926 :       Art icle (Drugs - marijuana 112 ng/ml)
         Sentence : (20060926-20061007, 12 days) FOP suspended for 6 months

SPCM:

CC:

Retention Warning Counseling :

- 20050927 :       For insubordinate conduct toward WO, NCO or Petty Officer. Specifically, on 20050906 at approximately 0430, Applicant knowingly treated with disrespectful language or deportment toward a Corporal who was in the execution of his office. Applicant later admitted these facts to the Service Company First Sergeant, and knew it was his duty to observe and follow orders and directions as may be given from time to time by Superiors acting according to the rules and articles governing the discipline of the Armed Forces of the United States of America. Your actions demonstrate a deliberate intent to continue to violate those high standards of conduct within the Marine Corps and a total disregard for those Superiors appointed over you that help enforce the rules and regulations that promote good order and discipline. Your behavior will not be tolerated and has no place in the ranks of the Marine Corps.

- 20051006 :       For failure to obey a lawful order or regulation. In that on 0800, 20050904 you knowingly violated Group Order 1050.2 (Liberty Buddy Order) by willfully and intentionally not signing out in the liberty logbook as required by the Liberty Buddy Order and left Camp Foster by not returning by 2400 as directed by your red card status; and MCBJO P3000.1C w/chl (SOP for Destructive Weather) by leaving Camp Foster for off base liberty during typhoon conditions and not returning when ordered to do so by his NCOIC. Your actions demonstrate a deliberate intent to violate these written policies and a total disregard for the rules and regulations that help promote good order and discipline . The Liberty Buddy Order is a proactive measure which provides a measure of force protection for the well-being of yourself and other Marines and Sailors, contributes to mission success, and allows service members to “take care of their own” while on off-base liberty. Your behavior will not be tolerated and has no place in the ranks of the Marine Corps.

- 2006012 4 :       For unauthorized absence and failure to obey a lawful order or regulation. On 20060104 at approximately 0500 you knowingly violated Article 8 6. You did without authority fail to report to the rifle range in order to BZO your weapon that was your appointed place of duty. As a result you were dropped from the rifle range. Violation of Article 92 x2, in that on 20060103 at approximately 2200-0600 on 20060104, you failed to obey a lawful order or regulation. You failed to reside in the barracks room assigned to you and slept overnight as a guest in another BEQ room that you were not authorized to do so. Your actions demonstrate a deliberate intent to violate written policies and orders and a total disregard for the rules and regulations that help promote good order and discipline. Your behavior will not be tolerated and has no place in the ranks of the Marine Corps.

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present,
Paragraph 6210, MISCONDUCT .

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 misconduct was an isolated incident.
2.       The Applicant contends Post - Traumatic Stress Disorder (PTSD) and his mental state mitigate his misconduct.
3. The Applicant contends he was denied rights to counsel and to request an administrative discharge board during separation.

Decision

Date: 2011 0802          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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings , for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey an order or regulation, 3 specifications), and for of the UCMJ: Article
( , : marijuana, 112 ng/ml ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 5 Nov 2002 . Based on the offenses committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel and to submit a written statement. The Applicant waived his right to an administrative discharge board as part of his pre-trial agreement for summary court-martial .

: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident. The Applicant’s violation of Article 112a was not an isolated incident , according to the record. He had one NJP and three P age 11 warnings , all dealing with failure to follow orders and adhere to Marine Corps standards of conduct. Additionally, c ertain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive di scharge but opted instead for the more lenient administrative discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends PTSD and his mental state mitigate his misconduct. The NDRB was unable to obtain the Applicant’s medical records. There is no indication in the record, and the Applicant provided no documentation or evidence to indicate , he suffered from PTSD or any other mental condition that might have mitigated his misconduct. The NDRB must presume regularity in the conduct of governmental affairs in the absence of compelling evidence. Due to the lack of evidence to support this issue, an up grade would be inappropriate.

: (Decisional) ( ) . The Applicant contends he was denied rights to counsel and to request an administrative discharge board during separation. The record clearly shows the Applicant waived his right to counsel and to make a statement when notified of his rights on 11 Sept ember 2006. The Applicant waived his right to an administrative discharge board as part of a pre-trial agreement, signed 11 Sept ember 2006, to plead guilty at summary court-martial, vice appearing at special court-martial. Considering the Applicant’s history of misconduct, the NDRB found his command to be lenient in providing him the opportunity to avoid special court-martial, which likely would have resulted in a Bad Conduct d ischarge as well as confinement. The NDRB determined the Applicant’s characterization of service to be appropriate as assigned. No change is warranted.

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 . 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 Disabled 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 | 2011_Marine | MD1100299

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