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Decision Text

USMC | DRB | 2011_Marine | MD1100370
Original file (MD1100370.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101130
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: MEDICAL DISCHARGE

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20040405 - 20040517     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20040518     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080711      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 55
MOS: 0121/0161
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle LoA (8) CoC (Unit Award) (2) CoC (Individual Award) MM CoA

Periods of CONF : 20080331 - 20080402, (3 days)

NJP:

- 20040927 :      Article (Failure to obey order, regulation)
         Awarded: Suspended:

- 20080125 :      Article (UA from Body Composition Program, H&HS MCAS Miramar during the period 0530 20071130
         Article (Made disrespectful remarks toward a Warrant Officer)
         Article ( D isobeyed a lawful order given by a n NCO)
          Awarded: Suspended: Vacated on 20080318

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20040927 :      For lack of judgment and failure to follow simple instructions . On 20040926 while in a student status you disobeyed all school orders and regulations by leaving Marine Corps Base Camp Pendleton to go out in town in uniform to get a haircut .

- 20051031 :      For insubordinate conduct toward a Noncommissioned and Staff Noncommissioned Officer . On 20061006, you were asked to file Service Record Book by your NCOIC and you chose to ignore her order. When asked about the situation by your SNCOIC you replied in a disrespectful manner stating , “I’m nobody’s bitch. ”



- 20070507 :       For lack of judgment, maturity and professionalism during a domestic violence incident that took place at your residence. On 20070427 , you and your spouse were involved in a domestic dispute that resulted in you being arrested .

- 2 0070807 :      For being overweight (current weight 268 pounds; max wt by MCO P1600.12 W/CH 1, 2 is 232 pounds) .

- 20080125 :      For non - judicial punishment on 20080125 for violations of the UCMJ, specifically Articles 86, 91, and 92 .

- 20080310 :      For your extension on the Marine Corps BCP . You have made reasonable progress but have failed to reach your required body composition while on your first assignment to this program . Therefore, you have been granted a one-time extension of 6 months to meet the body composition standards set forth in MCO P1600.12 .

NDRB Documentary Review Conducted (date):        20091002
NDRB Documentary Review Docket Number:   MD09-01207
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ Marine Corps Good Conduct Medal; Navy and Marine Corps Achievement Medal; Global War on Terrorism Service Medal; Letter of Appreciation (8 th Award); Certificate of Commendation (Unit Award) (2 nd Award); Certificate of Commendation (Individual Award) Meritorious Mast; Certificate of Appreciation; Expert Rifle Badge ”
         Block 28, Narrative Reason for Separation, should read: “IN LIEU OF TRIAL BY COURT-MARTIAL ”
        
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C. 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.       Applicant wants his Narrative Reason for Separation to be changed to Medical.
2 .       Applicant asserts that he was on medication that rendered him insane , caused him to behave irrationally , and speak incoherently. He was not aware that he had threatened anyone. He also contends that his record of service warrants consideration for an upgrade to General .
3 .       Applicant contends his command breached privacy/confidentiality where his domestic issues were involved.
 4 .        Applicant contends his d ischarge was inequitable due to inadequate legal counsel.
 5 .       Post-service conduct and achievements warrant consideration for an upgrade to General .

Decision

Date: 20 1 1 1121            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 governmental 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 six 6105 counseling warnings and two non-judicial punishments for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized a bsence, 1 specification), Article 91 ( Disrespect toward a warrant officer, 1 specification) , and Article 92 ( Failure to obey order or regulation, 2 specifications). His record of service also reflects additional violation s of the UCMJ ( Article 134 : C ommunicating a threat, 2 specifications) for which charges were referred to a special court-martial. Rather than face trial by court-martial, on 2 June 2008 , the Applicant requested separation in lieu of trial by court-martial. In his request for discharge, he acknowledged his complete understanding of the elements of the offense s for which he was charged and that he was guilty of the offense s . He also certified a complete understanding of the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions. Based on the offense s committed by the Applicant , his command administratively processed him for separation.

: (Nondecisional) The Applicant wants his Narrative Reason for Separation to be changed to Medical. 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 asserts that he was on medication that rendered him insane , caused him to behave irrationally , and speak incoherently. He was not aware that he had threatened anyone. He also contends that his record of service warrants consideration for an upgrade to General. Despite a service member’s prior record of service, certain serious offen ses warrant separation from the Marine Corps to maintain proper order and discipline. The A pplicant was accused of comm unicating threats, which are violations of Article 134 of the UCMJ and ultimately resulted in his separation from the Marine Corps. Such serious offenses normally result 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. Rather than pursue punitive action, on 25 June 2008, the Applicant’s command approved his request for separation in lieu of trial by court-martial, opting for the more lenient administrative discharge. The NDRB conducted a detailed review of the Applicant’s service and medical records and, in conjunction with the Applicant’s detailed testimony,

determined that the Applicant was in an irrational and incoherent state due to his extensive medications at the time of the threats. As a result, the NDRB determined that there was some mitigation due to his heavily medicated state. Taking into consideration the relatively minor instances of misconduct earlier in his career, coupled with his strong performance in service, the NDRB determined that the discharge was proper but inequitable. Relief granted.
Issue s 3 - 5 : The Applicant requested an upgrade to General (Under Honorable Conditions). Full relief up to his request was granted based on Issue 2 . The Applicant also requested his Narrative Reason for Separation be changed to Medical. T he 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 . Since full relief under the NDRB’s authority was granted, Issues 3 , 4, and 5 will not be addressed.

 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 . The Applicant is no longer eligible for additional reviews or hearings by the NDRB. He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, for further review using DD Form 149.































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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