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USMC | DRB | 2011_Marine | MD1100854
Original file (MD1100854.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110216
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)       19951028 - 19960813     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960814     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20000813      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 81
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) (2) LoA (2) CoC

Periods of UA / CONF :

NJP:

- 19980201 :      Article ( Insubordinate c onduct toward warrant officer, noncommissioned officer - d isrespect by rolling his eyes “twice” during counseling to Company 1 st Sgt)
         Article ( Fail to obey order or regulation - by d isobey ing a lawful order to keep a M249 spare barrel on his person for 24 hours by failing to do so by separating himself from the spare barrel in a belligerent manner)
         Awarded: Suspended:

- 19991223 :      Article ( Fail to obey order or regulation - d isobey a lawful order not to consume alcohol while on Class “B ” liberty)
         Article ( General A rticle - d runk and disorderly in public)
         Awarded: Suspended:

- 20000115 :      Article ( Willfully disobeying superior commissioned officer - f ailure to obey lawful order by wrongfully refusing to take the Anthrax shot)
          Article ( Drunken or reckless operation of a vehicle - p hysically control a vehicle w ith a BAC of .11)
          Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 19991222 :       For alcohol - related incident. Specifically, on or about 19991201 at 0248 you were stopped by Military Police at the front gate for suspicion of driving while impaired. Your BAC at the scene was .011. Drinking and driving are not tolerated.

- 20000127 :       For failure to obey a lawful order. Specifically, on 19991201, you disobeyed a lawful order to take the Anthrax shot. You also disobeyed a written order to do the same. You are advised that orders and directives are not yours to choose to obey or not obey.

- 20000515 :       For failure to meet minimum standards and poor physical conditioning. Specifically, you failed the Marine Corps Physical Fitness Test administered on 2000501 by only performing 30 minute run time. Conduct of this type is unacceptable.

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 P1900.16E), effective 18 August 1995 until 31 August 2001, 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.       The Applicant seeks a change in his RE-code in order to reenlist into the R eserve A rmed Forces .
2.       The Applicant contends his discharge is inequitable , because he felt his command treated him unfairly for refusing to take the Anthrax v accination and because he believes his service was overall honorable .
 3.       Post-service conduct.

Decision

 Date: 20 1 2 0503            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 and for o f the Uniform Code of Military Justice (UCMJ): Article 90 ( Willfully disobeying superior commissioned officer - failure to obey lawful order by wrongfully refusing to take the Anthrax shot ), Article 91 ( Insubordinate c onduct toward warrant officer, noncommissioned officer - disrespect by rolling his eyes “twice” during counseling to Company 1 st Sgt ), Article 92 ( Fail to obey order or regulation : 19980201 , by disobey ing a lawful order to keep a M249 spare barrel on his person for 24 hours by failing to do so by separating himself from the spare barrel in a belligerent manner and 19991223 , disobey a lawful order not to consume alcohol while on Class “B” liberty ) , Article 111 ( Drunken or reckless operation of a vehicle - physically control a vehicle while the BAC was .11 ), and Article 134 ( General A rticle - drunk and disorderly in public ) . Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Nondecisional) The Applicant seeks a change in his RE-code in order to reenlist into the R eserve A rmed Forces. 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 his discharge is inequitable , because he felt his command treated him unfairly for refusing to take the Anthrax v accination and because he believes his service was overall honorable . Issues regarding the safety of the Department of Defense’s (DOD) Anthrax Vaccination program are beyond the purview of the NDRB to address, and the NDRB has no authority to question this determination by DOD. DOD has determined that personnel whose duties are essential to mission critical capabilities are vaccinated against anthrax, both for their personal protection and for the success of the military mission. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was treated unfairly by his command for refusing to take the Anthrax vaccination. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Per the Marine Corps Separation and Retirement Manual, an Honorable characterization upon expiration of active service is appropriate when the quality of the Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization will be honorable for Marines with average P roficiency (Pro) marks of 3.0 or higher and average C onduct (Con) marks of 4.0 or higher. The Applicant was allowed to complete his obligated service and his overall

marks for P roficiency and C onduct were 3.5 and 3.5, respectively. These P ro/ C on marks are below the minimum standards for an Honorable characterization upon the completion of required active service. A thorough review of the records indicate s the quality of the member’s service ha d been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The NDRB discerned no inequity in the characterization of the Applicant’s service. 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 . 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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