Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1100647
Original file (MD1100647.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110113
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)       20050811 - 20050828     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050829     Age at Enlistment:
Period of E nlistment : Year s Months
Date of Discharge: 20090724      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 70
MOS: 6062
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle L o A MM

Periods of UA / CONF :

NJP:

- 20071114 :       Article (Drunken or reckless driving with a BAC 0 . 20 , 20071110 )
         Article 111 (Drunken or reckless driving, hit a vehicle and failed to stop , 20071110 )
         Awarded : ORAL (to E- 2 ) FOP RESTR EPD Susp ended: None

- 20080909 :       Article (Disorderly conduct of a nature to bring discredit upon the armed forces , 20080704 )
         Awarded : PUNITIVE REPRIMAND (to E-1 ) (60 days) Susp ended: (suspend 6 mos)

SCM:              SPCM:

Civil Arrest:
         20081222: Operating a vehicle while i ntoxicated with a BAC of 0 . 17.

Civil Conviction:
         20080813: Obstructing justice/resisting arrest.

Retention Warning Counseling :

- 20070410 :       For your violation of Article 92 due to the possession of unauthorized items in your barracks room. Your judgment was lacking and not of the standard expected of a Marine.

- 20071114 :       For your violation of Article 111 x 2 of the UCMJ to wit: Drove a vehicle with a BAC of 0 . 20 and failed to stop af ter hitting another vehicle.



- 20080909 :       For your violation of Article 134 of the UCMJ to wit: You displayed disorderly conduct in public, which was of a nature to bring discredit upon the armed forces.

- 20081014 :       For failure to follow and compete your alcohol aftercare program.

- 20090109 :       For your pending adjudication by civilian authorities for DUI, as evidenced by the Notification of P reliminary Suspension of Base Driving Privileges dated 6 January 2009.

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 and 111 .


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

Applicant’s Issues

 1.       Applicant contends her discharge was improper and that it should have been based on medical issues.
2.       Applicant contends her discharge was improper/inequitable due to her misconduct incidents being approximately one year apart and because the misconduct had no effect on her work performance.

Decision

Date : 20 1 2 0 328            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 her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included five 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, possessing unauthorized items in her barracks room , USMC property from her workcenter ), Article 111 ( Drunken or reckless operatio n of a vehicle, 2 specifications : D riving a vehicle with BAC 0 . 20 , 10 Nov 2007 ; and collided with a vehicle and failed to stop while driving under the influence, 10 Nov 2007 ) , and Article 134 (Disorderly conduct, involvement with civil authorities, 4 Jul 2008) . The record also revealed one civil conviction (13 Aug 2008) for obstructing justice/resisting arrest and one civil arrest for driving while intoxicated ( BAC 0 . 17 ) . Additional d ocumented violations of UCMJ Article 92 (Failure to obey an order or regulation, 2 specifications) and Article 107 (False official statement, 2 specifications) were also found in the record, but no evidence of official adjudication could be found. The records also indicate the Applicant had three enlistment waivers for offenses she committed prior to entering the Marine Corps , which include d possession of drug paraphernalia (Mar 2003), illegal use of marijuana (two times), and driving under the influence of alcohol (Jul 2004). Based on the repeated and serious nature of the offenses committed by the Applicant, her command administratively processed her for separation. When notified of a dministrative separation processing (for A lcohol R ehabilitation Fa ilure, P attern of M isconduct, and C ommission of a S erious O ffense) using the procedure on 4 Mar 2009 , the Applicant exercised her rights to consult with a qualified counsel and request an administrative separation board, but waived right to submit a written statement .

The Applicant received an administrative board hearing on 15 Apr 2009 that resulted in the following findings: (By 3-0 vote) via a preponderance of the evidence, the Applicant was guilty of all acts alleged; (by 3-0 vote) the Applicant should be separated without suspension of the discharge ; (by 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions discharge; and (by 3-0 vote) the Applicant should not be transferred to the Individual Ready Reserve (IRR). On 15 Jun 2009, the Commanding Officer, Marine Aircraft Group 39 endorsed the Applicant’s administrative separation package stating , “ The basis for this proposed administrative separation is (the Applicant’s) habitual pattern of misconduct. Despite being given extraordinary support from her chain of command , she continues to make poor decisions. In November of 2007, SNM faced NJP for a hit and run accident, another NJP in September of 2008 for Disorderly Conduct, and a civilian arrest for Operating a Motor Vehicle while Intoxicated (her second DUI within one year). On 15 Apr 2009, an A dministrative Discharge Board convened and recommended (the Applicant) be discharged with an other than honorable characterization of service. On 20 May 2009, the Applicant’s Commanding Officer concurred with the Admin Board findings, stating ‘ (The Applicant) is a disruption to the good order and discipline of her unit. I have reviewed the Senior Member’s report and agree with the board’s findings and recommendations that (the Applicant) be discharged from the United States Marine Corps with an other than honorable conditions characterization of service .’ ” On 10 Jul 2009, the Separation A uthority concurred with the findings and recommendations of the Admin Board and 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). The Applicant was discharged as directed on 24 Jul 2009.

: ( D ecisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends her discharge was improper and that it should have been based on medical issues. T he 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 B oard for Correction of Naval Records can grant this type of narrative reason change . Moreover, D epartment of Defense 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. Relief denied.

: (Decisional) ( ) . The Applicant contends her discharge was improper/inequitable due to her misconduct incidents being approximately one year apart and because the misconduct had no effect on her work performance. The characterization of service is determined by the quality of the member’s total performance of duty and conduct (both on and off duty) during the current enlistment, including the reason for separation. Per the Marine Corps Separation and Retirement Manual, a n Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptab le conduct and performance for N aval 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 included five 6105 retention warning s, two NJPs , a civil arrest , and a civil conviction for offenses that included failure to obey an order or regulation (Art icle 92), two separate incidents of driving under the influence of alcohol (Art icle 111), obstructing justice/resisting arrest (Art icle 134 - D isorderly conduct), and failure to follow substance abuse/alcohol rehabilitation treatment aftercare. Violations of Articles 92 and 1 11 are considered serious offenses and are punishable by a B ad C onduct Discharge or D ishonorable D ischarge and 6 month s imprisonment if awarded at trial by special or general court-martial. 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 h er separation. Her discharge was completely in line with what others received for similar misconduct. Relief denied .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and the administrative separation process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for s eparation 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 | 2010_Navy | ND1001764

    Original file (ND1001764.rtf) Auto-classification: Denied

    Based on the Applicant’s repeated alcohol rehabilitation failures after receiving Level II and Level III alcohol rehabilitation treatment, to include two DUIs subsequent to completing treatment (3 career incidents involving driving while under the influence), and a previous COMNAVPERSCOM waiver of administrative separation(Feb 2006), his command processed for separationin accordance with the Naval Military Personnel Manual (MILPERSMAN). On 24 Oct 2008, the Applicant’s Commanding Officer...

  • NAVY | DRB | 2011_Navy | ND1101046

    Original file (ND1101046.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 the administrative separation 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. ” Additional Reviews : After a document review has been conducted,...

  • USMC | DRB | 2012_Marine | MD1201650

    Original file (MD1201650.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 | 2011_Marine | MD1100326

    Original file (MD1100326.rtf) Auto-classification: Denied

    Based on the significant misconduct of record, and without the Applicant’s Pro/Con mark history, the NDRB determined that the Applicant’s command was justified in awarding him a General (Under Honorable Conditions) characterization of service upon separation.Issues 1-2: (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities and to obtain veteran education benefits. Relief denied.Summary: After a thorough review of the available evidence, to include the...

  • USMC | DRB | 2013_Marine | MD1300009

    Original file (MD1300009.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 | 2009_Marine | MD0900999

    Original file (MD0900999.rtf) Auto-classification: Denied

    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. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded...

  • USMC | DRB | 2014_Marine | MD1400629

    Original file (MD1400629.rtf) Auto-classification: Denied

    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. With this misconduct, the Applicant met the requirements to be administratively separated for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

  • USMC | DRB | 2015_Marine | MD1401495

    Original file (MD1401495.rtf) Auto-classification: Denied

    20130221: Commanding General, 3d Marine Aircraft Wing forwarded Report of Misconduct to the Commandant of the Marine Corps recommending the Applicant’s administrative separation as a probationary officer via notification procedures. 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...

  • USMC | DRB | 2009_Marine | MD0901735

    Original file (MD0901735.rtf) Auto-classification: Denied

    The Applicant provided documentation the U.S Department of Veterans Affairs (VA) rated him 100 percent for PTSD, but stated he could not receive paid treatment. However, the NDRB determined partial relief was warranted based on clemency and by majority rule, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), but voted unanimously not to change the narrative reason for separation.Summary: After a thorough review of the available evidence, to...

  • USMC | DRB | 2010_Marine | MD1000449

    Original file (MD1000449.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT ,...