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USMC | DRB | 2011_Marine | MD1100687
Original file (MD1100687.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110120
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: END OF OBLIGATED SERVICE or CONVENIENCE OF THE                         GOVERNMENT

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19940922 - 19950723     Active:            19950724 - 19981020
                                    USMC     19981021 - 20021002

Period of Service Under Review:
Date of Current Enlistment: 20021003     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040730      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 35
MOS: 0352 / 8411 / 0369
         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (3) Pistol ( with 1 *) MCRR ( with 1 *) ( with 1 *) ( with 1 *) MM

Periods of CONF :

NJP:

- 20040625 :      Article ( W illfully disobeying superior commissioned officer on 20040620)
         Awarded: Suspended: ]

SCM:

- 20040512 :       Art icle ( W illfully disobeying superior commissioned officer 20 031222 and 20040221)
         Sentence :

SPCM:            CC:

Retention Warning Counseling :

- 20040609 :       For my recent summary court-martial concerning the following misconduct, specifically, violation of Article 90 in that I did, on 20031222-20040221 wrongfully disobey a lawful order from Captain F_.

- 20040625 :       For misconduct, specifically, violation of Article 90 in that I did, on or about 20040620 wrongfully disobey a lawful order from LTCOL to not associate with Mrs. D_ C_.





Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 950724 UNTIL 021002 ”

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 P1900.16F), 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.       The Applicant contends his unjust characterization of service can negatively impact his ability to utilize service benefits and secure employment or reenlist in the Armed Forces.
2.       The Applicant contends he warrants an upgrade base d on his in-service conduct.
3 .       The Applicant contends his reason for discharge is improper and should be changed to “End of Obligated Service ” or “Convenience of the Government , ” because parental responsibilities and personal problems affected his ability to perform his duties .
4.       The Applicant believes his post-service conduct is worthy of consideration.
 5 .       The Applicant contends his discharge is improper and inequitable , because it was based on a list of erroneous misconduct that appear ed on the Staff Judge Advocate’s Review (SJAR) M emorandum . He also contends he did not meet the requirements for a Pattern of Misconduct , because his two P aragraph 6105 entries were invalid.

Decision

Date: 20 1 2 0328            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. The Board did complete 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 warnings, for o f the Uniform Code of Mi litary Justice (UCMJ): Article 90 ( Willfully disobeying superior commissioned officer on 20040620) , and for of the UCMJ: Article 90 ( Willfully disobeying superior commissioned officer on 20 031222 and 20040221 ). Based on the offenses committed by the Applicant, command administratively processed 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 board or a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant contends his unjust characterization of service can negatively impact his ability to utilize service benefits and secure employment or reenlist in the Armed Forces. 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. Similarly , t he 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. 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.

: (Decisional) ( ) . The Applicant contends he warrants an upgrade base d on his in-service conduct. E ach period of enlistment is an independent obligation and characterization is determined for that specific period of time. Previous to the current enlistment, the Applicant completed two Honorable enlistments. In the current enlistment, the Applicant had two retention warnings, an NJP, and a summary court-martial. This misconduct warranted separation based on a Pattern of Misconduct. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service , and the awarded characterization of service was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his reason for discharge is improper and should be changed to “End of Obligated Service” or “Convenience of the Government , ” because parental responsibilities and personal problems affected his ability to perform his duties . There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he informed his chain of command of family problems and did not receive the assistance, leave, or help he asked for. Additionally, the Applicant makes no mention of, nor provides documented proof of , if he attempted to use any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy - Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel, all provide services to members of the military, regardless of grade, in times of need . The Applicant did not reach the end of his enlistment and so the narrative reasons of “End of Obligated Service” and “Convenience of the Government” would not be appropriate. Relief denied .

4 : (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. 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. Besides the Applicant’s letter attached to his DD Form 293, he provided six letters of character reference, a certificate of excellence for test taking in the Principles of Learning and Teaching: Grades K-6, South Carolina State Board of Education Educator certificate, academic transcript for Spring 2011 enrollment at the University of South Carolina, letter of confirmation of selection for employment as a Teacher, First Grade with the South Carolina/Fort Stewart District in Laurel Bay, and a letter confirming the Applicant was named to the President’s Honor List at the University of South Carolina during Spring 2011. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. After a careful review of the Applicant’s post-service documentation and official service records, and taking into consideration his statement , and the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds. The NDRB voted unanimously to upgrade the characterization of service to General (Under Honorable Conditions) but not change the narrative reason for separation based on this issue . Partial relief warranted.

5 : (Decisional) ( ) . The Applicant contends his discharge is improper and inequitable , because it was based on a list of erroneous misconduct that appear ed on the SJAR M emorandum . He also contends that he did not meet the requirements for discharge due to a Pattern of Misconduct. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Fitness Reports, Discharge Process , and evidence submitted by the Applicant, the NDRB found that the S JAR M emorandum dated 15 July 2004 was in error. On the SJAR Memorandum in the Applicant’s service record, NJPs d ated 20010208, 20021007, 20030502, 20030829 and a civil DUI conviction (no date) appear nowhere in the Applicant’s service record , to include fitness reports, punishment records, or counseling entries. Conversely, the Applicant’s misconduct of record (summary court-martial of 20040512 , NJP of 20040625 and two retention warnings) did not appear on the SJAR Memorandum . Though the SJAR Memorandum was in error, it does not change the fact that the Applicant had several instances of misconduct in his current enlistment , which qualified for separation due to a Pattern of Misconduct . The NDRB determined that the erroneous SJAR Memorandum did not change the basic facts of the Applicant’s separation proceedings and that there was no impropriety or inequity in the characterization of service or narrative reason for separation.

The Applicant also contends he did not meet the requirements for discharge due to a Pattern of Misconduct , because his two P aragraph 6105 entries were invalid. T he NDRB agrees that the P aragraph 6105 entries were not written in accordance with the Marine Corps Separation and Retirement Manual . Therefore, the Applicant did not meet the requirements for separation due to a Pattern of Misconduct . However, t he Applicant was found guilty of violation of UCMJ Article 90 at a summary court-martial and at an NJP. Violating Article 90 is a serious offense per Appendix 12 of the Manual for Courts-Martial and warrants administrative separation processing . The Applicant’s command , however, did not notify him of separation proceedings based on Marine Corps Separation and Retirement Manual , paragraph 6 210.6, Commission of a Serious Offense . Therefore, it would be improper to change his reason for separation to Misconduct - Commission of a Serious Offense. Since no other reason exists that accurately describes why the Applicant was separated from the Marine Corps, the NDRB determined that the Narrative Reason for Separation will change to Secretarial Authority. Partial relief 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 the discharge was proper but not equitable . Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to . The Applicant remains eligible for a personal appearance hearing for 15 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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