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USMC | DRB | 2011_Marine | MD1100429

Original file (MD1100429.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20101207

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)       19990823 - 20000709     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000710     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040615      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 51
MOS: 0811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20021029 :      Article (UA, on or about 20021005, without authority failed to go to Remedial Drivers course , his appointed place of duty)
         Article (Failure to obey a lawful order the same by not showing up for a Remedial Drivers course)
         Awarded: Suspended:

- 20021120 :      Article (With intent to deceive, SNM stated that his Alpha blouse was back at his home of record for a Battery Alpha inspection and being mailed to him, when the whole time it was under his rack at his barracks room)
         Awarded : Susp ended:

- 20021120:      Article ( Violated a lawful regulation by going to the MCCS Exchange Annex without a n NCO escort or permission from the Platoon Commander while assigned to Bn restriction)
         Awarded : Susp ended:

- 20040504 :      Article ( UA, 2 specifications )
         Specification 1: on 20040331, did not go to his traffic court date as directed by his ticket
         Specification 2: on 20040415, did not go to his traffic court date as directed by his ticket
         Article (Violating a lawful order or regulation, 5 specifications )
         Specification 1: on 20040303, violated General Order Number 2, while acting as a sentry at MCLB Barstow, CA by joyriding and spraying the guard van with a fire extinguisher
         Specification 2: on 20040302, operated a forklift without a government license
         Specification 3: on 20040312, was cited by the Military Police for speeding on base
         Specification 4: on 20040312, drove on Camp Lejeune, NC while his base driving privil eges were suspended

         Specification 5: on 20040327, drove on Camp Lejeune, NC while his base driving privileges were suspended
         Article 108 ( Loss, damage, or destruction of military property, o n 20040303, did willfully damage government property, to wit: one forklift, by ramming the vehicle from the side )
         Article ( Larceny, o n 20040303, did wrongfully appropriate a civilian forklif t)
         Awarded : Susp ended:

SCM:     SPCM:

CC:

- 20010327 :       Offense: Speeding, going 115 mph in a 65 mph zone
         Sentence : SNM was sentenced to 60 days in jail with 50 days suspended. SNM was confined and released after 5 days for good behavior, SNM was charged 5 days leave

Retention Warning Counseling :

- 20010420 :       For speeding, going 115 mph in a 65 mph zone SNM was convicted and sentenced on 20010327 by the County of Greensville, Emporia VA

- 20010618 :       For possession of illegal fireworks at the barracks

- 20021106 :       For failing to conform to the standards set forth in MCO 6100.12 MARINE CORPS PHYSICAL FITNESS TEST AND BODY COMPOSITION PROGRAM MANUAL, also for being found guilty of NJP for Article 86 on 20021029

- 20021206 :       For violation of Article 107 NJP

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 P1900.16F), 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 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 physical problems with his feet caused him to become discouraged and make poor decisions , because he felt harassed due to his inability to train.
2.       Post-service conduct .
Decision

Date : 2012 0214             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 (Unauthorized absence, ), Article ( , 7 specifications ), Article (False official statement, ), Article 108 ( Destruction of military property , ), and Article ( , 1 specification) , and for speeding (115 mph in a 65 mph zone) that resulted in a sentence of 60 days in jail (50 suspended) . Based on the , command administratively processed for separation. When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel and request an administrative separation board (ASB) . The Applicant waived his right to submit a written statement. By a majority vote, the ASB recommended separation with an Under Other Than Honorable Conditions characterization of service. The separation authority suspended the separation for twelve months , which was subsequently vacated , and the Applicant was discharged .

: (Decisional) ( ) . The Applicant contends physical problems with his feet caused him to become discouraged and make poor decisions , because he felt harassed due to his inability to train. The record contained no evidence supporting the Applicant’s contention. The record shows the Applicant engaged in a clear pattern of misconduct. The Applicant was previously recommended for administrative separation, but separation was suspended for twelve months and vacated on 9 Sept 2003 due to continued misconduct that resulted in a fourth NJP and administrative separation. The NDRB found the Applicant had numerous opportunities to correct himself, but refused to do so. It was further determined that his foot condition had no bearing on his misconduct. An up grade would be inappropriate. Relief denied.

: (Decisional) ( ) . The Applicant requested the NDRB consider post - service conduct as a basis to gain a more thorough understanding of performance and conduct during the period of service under review. The Applicant provided a statement and numerous character reference letters from family , friends, business partner, and fellow Marines. The Applicant ’ s post-service documentation efforts need to be more encompassing. He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post - service conduct establishes a reason to change the characterization or narrative reason. Due to the limited documentation and in light of the serious and repe titive n ature of the Applicant’s misconduct, the NDRB determined 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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USMC | DRB | 2011_Marine | MD1100429

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