Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1100588
Original file (MD1100588.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20101228
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)       20041221 - 20050724     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050725     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080229      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 80
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (Iraq)

Period of UA : None. CONF : Pre-trial: 20070917-20070926

NJP:     SPCM:    CC:

SCM:

- 20071205 :       Art icle (Violate a lawful general order, 5 specifications )
         Specification 1: Consuming alcohol while under 21.
         Specification 2: Making LCpl S_ chug beer.
         Specification 3: Making LCpl P_ chug beer.
         Specification 4: Making LCpl S_ stand at parade rest, telling him he was a waste of semen, and kne e ling in the corner of the room while putting his head against the wall.
         Specification 5: Making LCpl G_ stare at a mop.
         Article 128 (Assault, 4 specifications )
         Specification 1: Strike PFC C_ in the face with his hand.
         Specification 2: Putting a mop in LCpl S_ face.
         Specification 3: Strike LCpl S_ in the face with his hand
         Specification 4 : Strike PFC C _ in the face with his hand
         Article 134 (General A rticle, solicit LCpl C_ to provide alcohol to a person under 21)
         Sentence :

Retention Warning Counseling :

- 20070305 :       For consuming alcohol while under the age of 21. Specifically, you were recently involved in an alcohol - related incident while under the age of 21.

- 20070611 :       For your poor judgment and overall lack of leadership demonstrated.


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 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 , 128, and 134 .


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

Applicant’s Issues

1.        The Applicant desires to re-enlist in the military.
2.       The Applicant desires to become eligible for the GI Bill.
3.       The Applicant contends his good ser vice outweighs his misconduct.
4.       Post-service conduct.
Decision

Date : 2012 0313             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 and for of the UCMJ: Article ( , ) , Article ( , ), and Article ( Article , ) . Based on the , command administratively processed for separation . When notified of administrative separation processing, the Applicant rights to consult with a qualified counsel and submit a written statement. In accordance with his pre-trial agreement, the Applicant waived his right to request an administrative board.

: (Nondecisional) The Applicant desires to re-enlist in the military. 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 B oard for Correction of Naval Records 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.
: (Nondecisional) The Applicant desires to become eligible for the GI Bill. 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. 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.
: (Decisional) ( ) . The Applicant contends his good service outweighs his misconduct. Certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article s 92, 128, and 134 are offense s warranting 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 command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate. Relief denied.







Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant described his work history since his discharge on the DD Form 293 and submitted two letters of character reference in addition to multiple letters from Marines who served with the Applicant. The NDRB considers 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. 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 and UCMJ violations. 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

Similar Decisions

  • USMC | DRB | 2006_Marine | MD0601164

    Original file (MD0601164.rtf) Auto-classification: Denied

    Complete Service Record: YES Complete Medical Record: YESComplete Discharge Package: YESRegarding propriety, the Board found the discharge: PROPER Regarding equity, the Board found the discharge: EQUITABLEIssues 1-3: The Board determined that these Issues are not issues which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. Specification 6: Did on or about between 20040515 and 20040523,...

  • USMC | DRB | 2015_Marine | MD1500352

    Original file (MD1500352.rtf) Auto-classification: Denied

    The Applicant’s record of service included 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article (Failure to obey an order or regulation, 2 specifications), and Article (General article, Drunk and disorderly in his conduct towards a SSgt (SDO) and Sgt (DNCO); and for of the UCMJ: Article 86 (Absence without leave), Article 92 (Failure to obey order or...

  • USMC | DRB | 2013_Marine | MD1301845

    Original file (MD1301845.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2006_Marine | MD0600993

    Original file (MD0600993.rtf) Auto-classification: Denied

    ex-, USMC MD06-00993Current Discharge and Applicant’s Request: Application Received: 20060718Characterization of Service: Narrative Reason for Separation: misconduct-pattern of misconduct (ADMINISTRATIVE DISCHARGE BOARD REQUIRED BUT WAIVED)Discharge Authority: MARCORSEPMAN 6210.3Last Duty Assignment/Command at Discharge: HQSVCBN FMFPAC CAMp SMitH HIApplicant’s Request: Characterization change to: Narrative Reason change to: Review Requested: Representation: Decision: Date of...

  • USMC | DRB | 2012_Marine | MD1201176

    Original file (MD1201176.rtf) Auto-classification: Denied

    The Applicant contends his post-service conduct warrants consideration for an upgrade. 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 DISABILITY, SEVERANCE PAY.The Applicant remains eligible for a personal appearance hearing for a period of fifteen years...

  • USMC | DRB | 2010_Marine | MD1000182

    Original file (MD1000182.rtf) Auto-classification: Denied

    The NDRB conducted a thorough review of the available evidence, to include the Applicant’s pre-service waiver; written acknowledgment of the Marine Corps Policy for Drug Abuse; his Summary of Service; Service Record Entries; the Summary Record of Trial by Special Court-Martial; and the personal statement of the Applicant. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at...

  • NAVY | DRB | 2009_Navy | ND0901695

    Original file (ND0901695.rtf) Auto-classification: Denied

    Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2012_Marine | MD1200411

    Original file (MD1200411.rtf) Auto-classification: Denied

    If the Applicant had been released at his EAS, the least favorable characterization of service he could have received would be General (Under Honorable Conditions) based upon his Proficiency and Conduct marks while in service. Full relief to Honorable was not granted due to the significant and repetitive misconduct during the Applicant’s enlistment.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge...

  • USMC | DRB | 2014_Marine | MD1401023

    Original file (MD1401023.rtf) Auto-classification: Denied

    Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.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. ...

  • NAVY | DRB | 2009_Navy | ND0902421

    Original file (ND0902421.rtf) Auto-classification: 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 Applicant’s date of...