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USMC | DRB | 2011_Marine | MD1100566
Original file (MD1100566.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101214
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)       19991130 - 20000618     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000619     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040223      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 54
MOS: 1316
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):     

Periods of UA/CONF:      UA 20031031-20031121 (21 days)
NJP:

- 20010323 :      Article (Failure to obey order or regulation, 3 specifications )
         Specification 1: Disobeyed a written order by bringing POV on base while a student
         Specification 2: Disobeyed a lawful order by drinking alcohol under the age of 21
         Specification 3: Disobeyed a lawful order by possessing alcohol in the barracks
         Article (Stole CDs and cologne from a Pvt )
         Awarded: (to E-1) Suspended: (suspend 6 months)

- 20020308 :      Article (Failure to obey order or regulation, 2 specifications )
         Specification 1: Consuming alcoholic beverages under the age of 21 on 200202 09
         Specification 2: Consuming alcoholic beverages under the age of 21 on 20020222
         Article 108 (Willfully damage military property in the amount of $448.00 , 20020209 )
         Awarded: (to E-1) CCU (30 days) Suspended: * Suspension vacated 20020403

- 20020416 :      Article (Failure to obey order or regulation by driving POV while on base suspension , 20020408 )
         Awarded: Suspended: * Suspension vacated 2002050 1

- 20031121 :      Article (UA, 3 specifications )
         Specification 1: Failure to go to appointed place of duty 0630-0645, 20031017
         Specification 2: Failure to go to appointed place of duty 0630-0650, 200 3 1024
         Specification 3: Unaut horized absence 0500, 20031031 to 0630, 20031121 , 21 days
         Awarded : (to E-2) Susp ended:




SCM:

- 20040206 :       Art icle (UA from Company formation, 0600-0625 on 20031219)
         Article 92 (Failure to obey order or regulation , on diverse occasions wrongfully failed to check in/out with the Officer of the Day while on restriction , o/o 20031218 )
         Sentence : RIR (to E-1)
         CA Action Sentence approved and ordered executed except for 30 days confinement being suspended due to administrative separation scheduled for 20040225

SPCM:    CC:

Retention Warning Counseling :

- 20010323 :       For failure to comply with the UCMJ. Unsatisfactory conduct and disregard of appropriate orders. You violated Article s 92 (3 specifications), 108, 121 and 134 of the UCMJ by wrongfully disobeying a written order, losing identification card, stealing CDs and bottle of cologne, lying to a CWO2, drinking alcohol in the barracks and drinking under the legal age. This is evidenced by your recent NJP for the Articles mentioned above. Furthermore, you are being advised to conduct yourself with professionalism and adhere to the Command ’ s policies.

- 20010713 :       For absence without leave (UCMJ Article 86) when you failed to be at Company PT at 0545. Also , insubordinate conduct (Article 91) when on 20010713 you ignored an NCO counseling you on your previous deficiency and subsequently walked away from this NCO. You have been repeatedly counseled over the last four months since you have joined this unit about conduct toward superiors, ability to follow orders, and overall substandard performance.

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.       Applicant seeks a discharge upgrade to obtain veteran benefits.
2.       Applicant seeks a discharge upgrade to improve employment opportunities.

Decision

Date: 20 1 2 03 01            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. T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warnings, for o f the Uniform Code of Military Justice (UCMJ): Ar ticle 86 ( Absence without leave , 4 specifications ) , Article 92 ( Failure to obey an order or regulation, 6 specifications ), Article 108 ( Wrongful destruction of government property, value $448 , 9 Feb 2002 ) , and Article 121 (Larceny, stole CDs and cologne from a USMC Private). The record also reflected for of the UCMJ: Article 86 ( Absence without leave ) and Article 92 (Failure to obey an order or regulation, on diverse occasions wrongfully failed to che c k in/out with the Officer of the Day while on restriction , o/o 18 Dec 2003 ) . On 3 Dec 2003, the Applicant submitted a request for administrative separation to the Commanding General. In his request, the Applicant stated , “The reason why I am requesting to be separated is due to personal problems involving my family, wife, and son. I feel the Marine Corps is affecting my relationship with these people, both physically and mentally. I also feel like I am stuck in a place where my personal life does not let me advance. I just don’t feel I can help the Corps in accomplishing its mission. I feel I am more of a pain in the neck of the Marine Corps than I am help. I deeply feel it would help both the Corps and myself if I got separated, and I can move on to other things in life. I am requesting not to be retained in the United States Marine Corps . ” B ased on the repeated and serious nature of the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 8 Jan 2004, the Applicant’s Commanding Officer endorsed his administrative separation package stating , “(The Applicant) has been seen at Battalion level NJP on four separate occasions, three instances have had dispositions vacated for further infractions of the UCMJ. In addition to the dispositions , (the Applicant) has received 6105 counselings on several occasions advising him of corrective actions that he needs to adhere to. (The Applicant) has an average proficiency and conduct rating of 3.6/3.6 respectively. (The Applicant) has not displayed the maturity or remorse to keep himself from further problems. I believe he is not capable of further honorable service , therefore I recommend his discharge be expedited with a characterization of other than honorable service . ” That same day, the Applicant’s Commanding Officer forwarded the administrative separation package to the Commanding General stating , “I have personally interviewed (the Applicant) on several occasions, and thought that he could overcome his deficiencies for the next seven months until his EAS. Despite his commitment to me that he could, he continues to violate fundamental orders and regulations. After violating Battalion-level restriction several times, he has proven unable to maintain minimum levels of acceptable conduct. Therefore, I recommend he be discharged for having a well established pattern of misconduct . ” The Applicant was separated from the Marine Corps on 23 Feb 2004 with an Under Other Than Honorable Conditions discharge due to Pattern of Misconduct.






Issues 1-2 : (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran benefits and to improve employment opportunities. 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. Additionally, th e NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
Per the Marine Corps Separation and Retirement Manual, a n H onorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A G eneral ( U nder H onorable C onditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record. A discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s record of service contained two 6105 retention warnings, four NJPs for violations of UCMJ Articles 86, 92 , 108, and 121, and one summary court - martial for violations of UCMJ Articles 86 and 92. Violation of Article s 92 , 108, and 121 are considered serious offense s , punishable by a B ad C onduct D ischarge and between six months and two years imprisonment if awarded at trial by courts-martial. The Applicant’s command decided not to refer charges on him for trial by court-martial , but instead opted to process him for administrative separation. After careful examination of and deliberation on the available evidence, the Board determined that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries , the administrative separation process, and letters from family members and a friend, 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 encouraged and 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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