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USMC | DRB | 2011_Marine | MD1101190

Original file (MD1101190.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110407

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)       20060107 - 20060716     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060717     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100716      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 42
MOS: 0121
Proficiency/Conduct M arks (# of occasions): / Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM LoA CoA

Periods of UA / CONF :

NJP:

- 20080207 :       Article ( Violate and f ailure to obey lawful general order or regulation, wrongfully consuming alcoholic beverages while under the legal drinking age of 21)
         Awarded : Susp ended:

- 20090514 :       Article (Make a false official record with intent to deceive)
         Article 132 (Fraud against the United States, prepare a unit diary number for approv al to make a claim of $2,233.33 for Family Separation Allowance, which claim was false and fraudulent)
         Awarded : Susp ended:

- 20091205 :       Article (Failure to obey lawful general order or regulation, wrongfully operating a vehicle while intoxicated, with a BAC of .08 or higher)
         Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080208 :       For off base underage drinking, DUI with a BAC of .08 or higher on 20071208.

- 20080208 :       For battalion level NJP for violation of A rticle 92, wrongfully consuming alcohol while under the legal drinking age of 21 on 20080202.

- 20090514 :       For battalion NJP for violation of A rticles 107 and 132 of the UCMJ.

- 20091205: For A rticle 111 Drunken or reckless operation of vehicle, aircraft or vessel. On 20091122, violate a lawful order, to wit: MCO 1700 22c, par 4(g) dated 20060321, by wrongfully operating a vehicle whi le intoxicated, with a BAC of . 08 or higher. Article 92, failure to obey a lawful general order or regulation on 20091122, violate a lawful general order, to wit MCO 1700 22c, par 4(g) dated 20060321, by wrongfully operating a vehicle while intoxicated, with a BAC of . 08 or higher.

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 P1900.16F), effective 1 September 2001 until Present, 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 an upgrade for service benefits.
2.       The Applicant contends that his discharge was too seve re for the offenses he committed.
3.       The Applicant seeks a better life for himself.

Decision

Date : 20 1 2 0 621          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 92 (Failure to obey order or regulation , 2 specific ation s , on or about 2 February 2008 wrongfully consumed alcoholic beverages while under the legal drinking age of 21 & on or about 22 November 2009 wrongfully operat ed a vehicle while intoxicated with a BAC of .08 or higher ), Article 107 ( False official statements , on or about 5 May 2008 prepared Unit Diary Number 00269 , which was totally false & on or about 21 May 2008 prepared unit diary number 00325 for Family Separation Allowance in the amount of $2,233.33 , which was false ), Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel, on or about 22 November 2009 wrongfully operated a vehicle while intoxicated with a BAC of .08 or higher ) and Article 132 ( Fraud against the United States , prepared a unit diary number for approval to make a claim of $2,233.33 for Family Separation Allowance ). Upon reaching the end of his active obligated service, the Applicant was released from active duty with a General (Under Honorable Conditions) characterization of service.

: (Nondecisional) The Applicant seeks 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 provide a foundation upon which the NDRB can grant relief.

: (Decisional) ( ) . The Applicant contends h is discharge was too severe for the offenses he committed. During the Applicant’s enlistment, he received four retention counseling warnings and was found guilty of violating UCMJ Articles 92 , 10 7, and 132 at three NJPs. Failure to obey a lawful order , falsifying official records, and committing fraud can result 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. Even though the Applicant had multiple violations of the UCMJ and warranted an Under Other Than Honorable Conditions discharge for Misconduct (Pattern of Misconduct) and Misconduct (Commission of a Serious Offense), his command did not pursue a punitive discharge or administrative discharge but opted to allow the Applicant to finish his enlistment. In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization of service will be Honorable for Marines with average Proficiency (Pro) marks of 3.0 or higher and average Conduct (Con) marks of 4.0 or higher. The Applicant’s Pro/Con average marks were not found in his record. In view of the four retention warnings and three NJPs over four years of service, the NDRB presumed that his Pro/Con marks did not meet the minimum 3.0/4.0 marks needed for an Honorable at the completion of required active service.
After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in awarding the Applicant a General (Under Honorable Conditions) characterization of service. In fact, the NDRB determined that it was particularly lenient , considering the seriousness of the offenses committed by the Applicant. Relief denied.

: (Decisional) ( ) . The Applicant seeks to better himself in the civilian community. The NDRB acknowledges the Applicant’s desire to provide a better life for himself , however, 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 a former service member’s ability to pr ovide a better life for himself. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. 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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USMC | DRB | 2011_Marine | MD1101190

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