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USMC | DRB | 2011_Marine | MD1100431
Original file (MD1100431.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101213
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)       20070316 - 20070401     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20070402     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100311      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 10 D a y ( s )
Education Level:        AFQT: 56
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle MM

Periods of CONF :

NJP:

- 20080519 :      Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Wrongfully consuming hard liquor in barracks
         Specification 2: Wrongfully driving at a speed in excess of 55 mph
         Article 111 (Drunken operation of a vehicle)
          Awarded: Suspended:

- 20080909 :      Article ( Absent without leave from appointed place of duty at 0730, 20080908)
          Article (Failure to obey order or regulation by wrongfully driving while under the influence of alcohol)
         Article 111 (Drunken operation of a vehicle)
          Awarded: Suspended:

- 20090213 :      Article (Failure to obey order or regulation) ,
         Article 111 (Reckless operation of a vehicle)
         Awarded: Suspended:

SCM:              SPCM:             CC:

C IV ARREST:

- 20080301 :      Charges : Vandalism to civilian vehicles and public drunkenness. Police report was never surrendered and he was not formally charged because he agreed to pay for the damages and the owners of the vehicles did not press charges.
        


Retention Warning Counseling:

- 20080507 :      For my violation of Article 134 of the UCMJ, in which I was charged with destruction of property by Pitt County on 20080301.

- 20080521 :      For my violation of Article 111 of the UCMJ, for which I received NJP on 20080519.

- 20080521 :      For my misconduct. On 20080519, I was questioned about the specifics surrounding my DUI from my chain of command. During this time, I told my chain of command that I was released on the terms that I would appear in court, which was not true. I called a Marine on high risk and SIQ to pick me up from the Onslow County Detention.

- 20090417 :       For failure to obey order or regulation, in that on 20090417 one bottle of Bacardi Coconut Rum was found in your barracks room refrigerator. Barracks regulations state that liquor is not authorized.

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 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

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 92 and 111.


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

Applicant’s Issues

 1.       The A pplicant contends he did not commit a serious offense; instead, his alcohol problems were a pattern of misconduct resulting from youthful immaturity.
 2.       The Applicant contends the evidence of the Administrative Separation Board shows that he was doing excellent work as a Marine; record of service warrants consideration for upgrading his discharge.
 3.       The Applicant contends the Marine Corps violated its policy and procedure s when he was awarded an Under Other Than Honorable characterization of service upon separation.
4.        The Applicant contends his post-service achievements warrant consideration for upgrading his discharge.

Decision

 Date: 20 1 20329            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’s record of service included 6105 counseling warnings, non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence, 1 specification) , Article 92 ( Failure to obey order or regulation , 4 specifications) , and Article 111 ( Drunken or reckless operation of vehicle, 3 specifications). His record of service also included a civilian arrest for vandalism and public drunkenness. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing , the Applicant exercised rights to consult with a qualified counsel and request an administrative board. He waived his right to submit a written statement.

: (Decisional) ( ) . The Applicant contends he did not commit a serious offense; instead, his alcohol problems were a pattern of misconduct resulting from youthful immaturity. Per the Marine Corps Separation and Retirement Manual, t he Applicant’s misconduct met the criteria for separation based on both Misconduct - P attern of M isconduct and Misconduct - C ommission of a S erious O ffense. After his command determined that it had made an error when processing him for separation based on a pattern of misconduct, it chose to process him based on commission of a serious offense instead . The Applicant violated Articles 92 and 111 of the UCMJ, both of which are considered serious offenses , because punitive discharges would have been authorized as part of a sentence had the violation been adjudicated at a special or general court-martial. A lthough the Applicant believed it to be unfair and improper for the government to change the basis for separation when it discovered its error , it was not , because another basis exist ed and the service member was properly notified of the change in the basis . The Applicant acknowledged his receipt of the notification and understanding of why he was being processed for separation. The NDRB determined that t he command was well within its authority to pursue separation based on commission of a serious offense. Furthermore, the NDRB recognizes that many service members are young when they enlist for service , however, most still manage to serve honorably. The Board does understand some members are not as mature or others , however, it does not view a member’s claim of youth ful immaturity to be a mitigating factor or a sufficient reason for misconduct. The NDRB discerned no impropriety or inequity based on this issue. Relief denied.

: (Decisional) ( ) . The Applicant contends the evidence of the Administrative Separation Board shows that he was doing excellent work as a Marine , therefore, his prior record of service warrants consideration for upgrading his discharge. While the Applicant did have a strong work performance in his last year in the Marine Corps, certain serious offenses warrant separation from the Marine Corps to maintain proper order and discipline. Violation of Articles 92 and 111 are such offenses where circumstances may warrant separation regardless of performance, grade, or time in service. V iolations of these a rticles usually result in an unfavorable characterization of discharge or, at a maximum, can result in a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a

special or general court-martial. Because the Manual for Courts- M artial authorizes a punitive discharge ( i.e. , Bad Conduct or Dishonorable) for violations of Articles 92 and 111, they are considered serious offenses. At non-judicial punishment proceedings, the Applicant was found guilty of multiple violations of these articles during his enlistment. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge with an OTH characterization of service. The NDRB discerned no inequity in the characterization of service or impropriety in the discharge process based on this issue. Relief denied.
: (Decisional) ( ) . The Applicant contends the Marine Corps violated its policy and procedures when it awarded him an OTH characterization of service upon separation, which was overly punitive. According to regulations, a punitive discharge is awarded as the result of a special or general court-martial. The Applicant was discharged based on the findings and recommendations of an administrative board, not a court-martial. The administrative board characteriz ed his service as OTH , which is administrative, not punitive. Marine Corps r egulation s state that an OTH is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a Marine. T he Applicant committed various serious offenses on multiple occasions . However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge . The NDRB discerned no impropriety in the discharge process and determined that the characterization of service was consistent with that given others in similar circumstances. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for upgrading his discharge. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct or achievements in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Along with his DD Form 293, the Applicant submitted documentary evidence o f his post-service achievements and activities , which included character reference letter s , certification of completing several training courses, and a copy of his massage therapist license. He also provided testimony pertaining to his employment status, credit standing, criminal record, alcoholism recovery efforts and status, family status, and future goals. Although his accomplishments are commendable, the NDRB concluded that neither his documentation nor his testimony regarding his post-service activities sufficient ly demonstrate d his in-service misconduct was an aberration and not indicative of his overall character. The Board concluded that relief based on this issue was not warranted. Relief denied.
Summary: After a thorough review of the available evidence and the Applicant’s testimony , to include the Applicant’s summary of service, record entries, and discharge process, by a vote of 3 to 2, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.


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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

 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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