Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1100553
Original file (MD1100553.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101222
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)       19981005 - 19990706     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990707     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20010419      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 54
MOS: 0411
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20001114 :      Article (UA 0900, 20001023)
         Awarded: Suspended:

- 20010308 :      Article (Failure to obey order or regulation , 20010223 )
         Article 95 (Wrongfully resist apprehension on 2300, 20010223)
          Art icle (False official statement by altering an official document , 20010223 )
         Article 134 (Displayed conduct of a nature to bring discredit upon the Armed Forces)
          Awarded : (to E-2) Susp ended:

SCM:

- 20010326 :       Art icle (Assaulted a staff noncommissioned officer by attempting to choke him , 20010318 )
         Article 92 (Wrongfully disobey a lawful written order by consuming alcohol, being out of uniform and checking in late)
         Article 95 (Resisting apprehension by the Staff Duty Officer)
          Sentence : RIR (to E-1) (20010319-20010412, 2 5 days)

SPCM:    CC:      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MARCORSEPMAN 6210.6 ”
         “ HKQ 1 ”

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, 92 , 95, and 107 .



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

Applicant’s Issues

 1.       The Applicant contends he had good service for the majority of his enlistment.

Decision

 Date: 20 1 2 0 223            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
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 . T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service did reflect for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 0900 on 23 Oct 2000 ), Article 92 ( Failure to obey an order or regulation, failed to properly sign liberty logbook, 2300 on 23 Feb 2001 ), Ar ticle 95 ( Resisting apprehension , 2300 on 23 Feb 2001 ) , Article 107 (Fal s e official statement , altered an official document, liberty logbook, o/o 24 Feb 2001), and Article 134 (Disorderly conduct, as to bring discredit upon the Armed Forces, 23 Feb 2001) , and one summary court martial for violations of UCMJ Article 91 (Assault of a staff noncommissioned officer, attempted to choke a Staff Sergeant performing the duties of Battalion Staff Duty Officer, 18 Mar 2001), Article 92 (Failure to obey an order or regulation, wrongfully consumed alcohol, not being in proper uniform, and checking in late), and Article 95 (Resisting apprehension by Staff Duty Officer , 18 Mar 2001 ) . The record also revealed that on or about 10 Mar 2001, the Applicant made a suicidal statement to his chain of command that resulted in him being admitted to the U.S. Naval Hospital Okinawa Japan for mental health evaluation. On 14 Mar 2001, the Applicant was diagnosed with Adjustment Disorder with depressed mood and Personality Disorder NOS (not otherwise specified) with prominent antisocial traits and borderline features. The physician recommended expeditious administrative separation of the Applicant , because he was determined to be a danger to himself and/or others. Based on the repeated and serious nature of the offense s committed by the Applicant, his command processed him for administrative separation. The Applicant was notified of a dministrative separation processing (for commission of a serious offense and personality disorder) using the procedure on 27 Mar 2001; however, the NDRB was unable to determine whether he elected to exercise or waive his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 12 Apr 2001 , the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense), with a separation code of HKQ1 (involuntary separation for misconduct - commission of a serious offense, administrative board waived). The Applicant was discharged on 19 Apr 2001. However, the Applicant’s DD Form 214 ( C ertificate of D ischarge from A ctive D uty) erroneously reflected a General (Under Honorable Conditions) discharge due to Misconduct, MARCORSEPSMAN para 6210.3 (Misconduct - Pattern of Misconduct) as the Separation Authority, and HKA1 as the Separation Code. The NDRB will recommend to the Commandant of the Marine Corps that the DD Form 214 be corrected as appropriate.
Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he had good service for the majority of his enlistment. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Article s 91, 92, 95, and 107 are offense s requiring mandatory processing for administrative separation regardless of grade , performance, 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 Applicant was found guilty of violation of numerous UCMJ a rticle s . However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. 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 the discharge was proper and equitable at the time of discharge ; however, administrative errors were made during the completion of the Applicant’s DD Form 214. 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

  • NAVY | DRB | 2004 Marine | MD04-01353

    Original file (MD04-01353.rtf) Auto-classification: Denied

    Also, a police clearance and a character reference from my church are included for review.” Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 from USMC Applicant’s DD Form 214 from ARNGARNG discharge certificate Criminal record check Character reference PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: NoneInactive: ARNG 840421 -...

  • USMC | DRB | 2008_Marine | MD0801914

    Original file (MD0801914.rtf) Auto-classification: Denied

    The Board determined the awarded discharge characterization was appropriate for the numerous NJP’s and UCMJ violations involved and an upgrade based on youth and immaturity would be inappropriate. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case...

  • USMC | DRB | 2012_Marine | MD1200976

    Original file (MD1200976.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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ADDENDUM: Information for the Applicant Complaint Procedures : If you believe the...

  • NAVY | DRB | 2009_Navy | ND0900703

    Original file (ND0900703.rtf) Auto-classification: Denied

    Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not...

  • NAVY | DRB | 2009_Navy | ND0901384

    Original file (ND0901384.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Based on the three NJPs and seriousness of the violations, the Board determined the awarded characterization of service was 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...

  • USMC | DRB | 2012_Marine | MD1201432

    Original file (MD1201432.rtf) Auto-classification: Denied

    The Applicant could have provided additional documentation as detailed 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 that the in-service misconduct was an aberration. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s...

  • USMC | DRB | 2015_Marine | MD1500239

    Original file (MD1500239.rtf) Auto-classification: Denied

    The Applicant’s command granted his request and processed him for administrative separation for reason of Commission of a Serious Offense (primary), and Alcohol Rehabilitation Failure. 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...

  • NAVY | DRB | 2010_Navy | ND1001667

    Original file (ND1001667.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant desires to advance his career options. 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...

  • USMC | DRB | 2010_Marine | MD1001589

    Original file (MD1001589.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...

  • USMC | DRB | 2015_Marine | MD1500436

    Original file (MD1500436.rtf) Auto-classification: Denied

    Based on the offense(s) committed by the Applicant, command administratively processed for separation. 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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE) . ” Additional Reviews : After a document...