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USMC | DRB | 2011_Marine | MD1100565
Original file (MD1100565.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101223
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)       20041120 - 20050117     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050118     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090305      H ighest Rank:
Length of Service : Y ea rs M on th 18 D a ys
Education Level:        AFQT: 82
MOS: 1341
Proficiency/Conduct M arks (# of occasions): NFI R / NFIR          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM SSDR (2) GWOTEM GWOTSM NDSM NUC LOA

Periods of UA / CONF :

NJP: 2

- 2006053 1 :      Article 92 (Failure to obey order or regulation, failure to adhere to liberty buddy system , 20060226 )
         Article 134 (Indecent liberties with a female under 16 years of age by kissing and sucking on her neck with intent to arouse the sexual desires of both himself and the minor female , 20060226 )
         Awarded: RIR (to E-2) FOP RESTR EPD Suspended: FOP RESTR EPD (suspend 6 months)

- 2008100 2 :      Article 112A (Wrongful use of controlled substance, marijuana, 51 ng/ml THC, 20080919 )
         Awarded: RIR (to E-2) FOP RESTR EPD Susp ended:

SCM: NONE        SPCM: NONE        CC: NONE

Retention Warning Counseling : 2

- 20080819:      For violation of Article 92. Specifically, failure to follow the guidelines of MCO P1020.34G . T he wearing of earrings by male Marines, regardless of liberty status, is not authorized .

- 20081002 :       For receiving Battalion Level Non-Judicial Punishment (NJP) for Art 112a on 081002 . This conduct will not be tolerated.








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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .
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.       Applicant contends his discharge was inequitable .
2.       Applicant contends his post-service achievements warrant consideration for discharge upgrade .

Decision

 Date: 20 1 2 03 01            Location: Washington D.C .         R epresentation : NONE

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 identified two decisional issues for the Board’s consideration. Although the Applicant’s service records are incomplete (missing administrative separation documentation related to the Applicant’s violation of UCMJ Article 112a to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety . The Applicant’s record of service included two 6105 counseling retention warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, failure to adhere to liberty buddy system while on liberty in Hawaii, 26 Feb 2006 ) , Article 112 a (Wrongful use of controlled substance, marijuana, 51 ng/ml THC, on or about 19 Sep 2008) , and Article 134 (Indecent liberties with a female under 16 years of age ). The Applicant also had two enlistment waivers for pre-service illegal use of marijuana and a serious civil offense prior to entering the Marine Corps . Based on the Article 112a violation, processing for administrative separation is mandatory per the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . However, since the Applicant’s records are incomplete, the Board could not determine if the Applicant was processed for administrative separation, and if so, whether he exercised or waived his rights to consult with qualified counsel, submit a written statement , and request a General Court - Martial Convening Authority Review , and/or why he was not separated from service due to his violation of UCMJ Article 112a. The Applicant was separated from the Marine Corps on 5 Mar 2009 with a General (Under Honorable Conditions) discharge due to Completion of Required Active Service. The KBK1 separation code listed on the Applicant’s DD Form 214 indicates a voluntary discharge at EAS.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable. Per the MARCORSEPMAN, a Marine may be awarded a General (Under Honorable Conditions) discharge if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. Additionally, if a member’s average P roficiency marks are below 3.0 and/or average C onduct marks are below 4. 0, the Marine can be awarded a General (Under Honorable Conditions) discharge upon completion of required active service . A review of the Applicant’s service record reveals no indication of his enlistment P roficiency and C onduct marks average. However, his record of service reflect s a pattern of inconsistent performance and conduct as evidenced by two 6105 retention warnings and two NJPs. Based on the significant misconduct within the service record and without evidence of the Applicant’s enlistment P ro/ C on mark average , the NDRB presumed regularity and determined that the Applicant’s General (Under Honorable Conditions) characterization of service upon separation was proper , equitable , and in accordance with the applicable orders and directives in effect at the time of his discharge . Accordingly, the Board found this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in

civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided a personal statement , three letters of character reference, and two letters from the VA acknowledging that the Applicant has been diagnosed with Major Depressive Disorder as evidence of post-service activities. A lthough efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review. The Applicant could have provided 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. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service, UCMJ violations, and repetitive use of illegal drugs while in service. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service and record entries, 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. 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

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