Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1101170
Original file (MD1101170.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110406
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)       19940331 - 19950116     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950117     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19961217      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 1 D a y ( s )
Education Level:        AFQT: 56
MOS: 0844
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:
Awards and Decorations ( per DD 214):     

Periods of CONF :

NJP:

- 19951026 :       Article ( F ailure to obey order or regulation)
         Art icle (Drunken or reckless operation of vehicle, aircraft, or vess e l )
         Awarded : Susp ended:

- 19960112 :      Article (Absence without leave, 19951214 less than 24 hours)
         Article (Larceny and wrongful appropriation)
         Article ( Check, worthless, making and uttering-by dishonorably failing to maintain funds)
         Awarded : Susp ended:

- 19960612 :      Article (Absence without leave , 4 s pecifications )
         Specification 1: Unauthorized absence from appointed place of duty on 19960416 from 0730-0945
          Specification 2: Unauthorized absence from appointed place of duty on 19960508 from 0500-1000
         Specification 3: Unauthorized absence from appointed place of duty on 19960515 from 0600-0840
         Specification 4: Unauthorized absence from appointed place of duty on 19960412 from 0600-0700
          Article (Failure to obey order or regulation)
         Article ( False official statement )
          Awarded : Susp ended:

- 19960711 :      Article (Absence without leave)
         Article (Restriction breaking)
         Awarded : Susp ended:

- 19960821 :      Article (Absence without leave)
         Article (Restriction breaking)
          Awarded : Susp ended:

SCM:     CC:

SPCM:

- 19961031 :       Art icle (Failure to obey order or regulation)
         Art icle (Larceny and wrongful appropriation)
         Art icle (Restriction breaking)
          Sentence :

Retention Warning Counseling :

- 19951025 :       For underage consumption and driving while impaired, 0.06 BAC

- 19960614 :       For recent office hours received

Administrative Corrections to the Applicant’s DD 214

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

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT] ”

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 P1900.16E), effective 18 August 1995 until 30 January 1997.

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 desires to receive an automatic upgrade.
2.       The Applicant contends he was harassed and assaulted by a Gunnery Sergeant and he also herniated his back, which mitigates his misconduct. He contends he asked for a court-martial and that is when he was discharged.

Decision

Date : 2012 0607             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 , for o f the Uniform Code of Military Justice (UCMJ): Article (Unauthorized absence, 7 specifications ), Article ( , ), Article (False official statement, ), Article ( , ), Article ( , ), Article ( Article , : Restriction breaking ), and Article ( Article , : W riting worthless checks ) , and for of the UCMJ: Article (Failure to obey an order or regulation, ), Article ( , ), and Article ( Article , : Restriction breaking ). Based on the , command administratively processed for separation. When notified of administrative separation processing, the Applicant right to co nsult with a qualified counsel but w aived his rights to submit a written statement and request an administrative board.

: (Nondecisional) The Applicant desires to receive an automatic upgrade. There is no such thing as an automatic upgrade. 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 subse quent to leaving N aval S ervice. The NDRB does not issue automatic upgrades.

: (Decisional) ( ) . The Applicant contends he was harassed and assaulted by a Gunnery Sergeant and he also herniated his back, which mitigates his misconduct. He contends he asked for a court-martial and that is when he was discharged. The record contained no evidence to support the Applicant’s contention. The Applicant provided no documentation or evidence to support his issue. The Applicant’s record shows a clear pattern of misconduct that culminated in his command preferring charges against him at a Special Court-Martial. He is extremely fortunate that he did not receive a punitive Bad Conduct Discharge. Due to the serious and repeated nature of the Applicant’s misconduct, the NDRB determined an u pgrade would be inappropriate. 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 . Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm. 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | 2008_Marine | MD0800939

    Original file (MD0800939.rtf) Auto-classification: Denied

    19960212:For violation of terms of restriction awarded at NJP on 19951207.19960612:For violation Article 86, unauthorized absence Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation:...

  • USMC | DRB | 2008_Marine | MD0801547

    Original file (MD0801547.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE).Discussion :().The Applicant regrets the mistakes he made while on active duty and desires to upgrade his discharge.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”,...

  • NAVY | DRB | 2008_Navy | ND0800742

    Original file (ND0800742.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • USMC | DRB | 2009_Marine | MD0901243

    Original file (MD0901243.rtf) Auto-classification: Denied

    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. Based on the limited post service documentation provided, an upgrade would be inappropriate.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...

  • USMC | DRB | 2008_Marine | MD0801541

    Original file (MD0801541.rtf) Auto-classification: Denied

    The Applicant should be aware 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 mitigates the reason for the characterization of discharge.Besides the personal statement provided on the DD Form-293, the Applicant failed to provide any additional statements and evidence of post The Board determined based on the limited documentation provided an...

  • NAVY | DRB | 2008_Navy | ND0800990

    Original file (ND0800990.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • NAVY | DRB | 2008_Navy | ND0800982

    Original file (ND0800982.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) Administrative Corrections to the Applicant’s DD 214The NDRB did note...

  • NAVY | DRB | 2008_Navy | ND0800999

    Original file (ND0800999.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • NAVY | DRB | 2008_Navy | ND0801635

    Original file (ND0801635.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that 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...

  • USMC | DRB | 2008_Marine | MD0801206

    Original file (MD0801206.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USMCR (DEP)19981028 - 19981231Active: Period of Service Under Review: Date of Enlistment: 19990101Period of Enlistment: Years MonthsDate of Discharge:20021231Length of Service: Yrs Mths00 DysEducation Level: Age at Enlistment:AFQT: NFIRMOS: 6672Highest Rank: Fitness Reports: Proficiency/Conduct Marks (# of occasions):4.1/3.6 (10)Awards and Decorations (per DD 214): Rifle:...