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USMC | DRB | 2011_Marine | MD1101199
Original file (MD1101199.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110412
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)       20051006 - 20051023     Active:   20051024 - 20070926 HON

Period of Service Under Review:
Date of Current Enlistment: 20070927     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100717      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 50
MOS: 0151
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle KDS M LoA (3 ) CoA CoC (2) MM Martial Arts (Gray Belt) GCM

Periods of UA / CONF :

NJP:
- 20100212 :       Article (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Article (General A rticle, disorderly conduct, drunkenness)
         Awarded : Susp ended:

SCM:     SPCM:    CC:

Arrest:
- 20100130 :       Offense: Improper stop/stand/park and 2 nd offense DUI
         Sentence : Incarcerated from 20080621-20080624

Retention Warning Counseling :

- 20080310 :       For on or about 20080308, you were a passenger in a vehicle that was stopped for possible DUI. Consequently, you were cited for disorderly conduct and public intoxication.

- 20081020 :       For misconduct, you were arrested and incarcerated from 20080621 to 20080624 for driving while under the influence of alcohol with a BAC of .193. Bond was waived due to admittance and comple tion of Impatient Treatment.

- 20081126 :       For violation of Article 92 of the UCMJ, s pecifically your failure to obey a direct order from the Regional Commander not to operate a privately owned vehicle. You were issued a provisional drivers license to be used in the official capacity of your work performance only. On 20081101, you exercised poor judgement by renti ng and operating a vehicle.



- 20100212 :       For violation of Article 111 and 134 of the UCMJ, s pecifically in that on or about 20100130, you operated a vehicle while intoxicated and refused to consent to a Blood Alcohol Level test when directed to do so by the Broward Sheriff.

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 051024 UNTIL 070926 ”
         “ 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 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 seeks an upgrade for service benefits.
2.       The Applicant seeks to have his accrued leave and final pay refunded.
3.       The Applicant contends he was improperly assigned to independent duty and did not receive help when he asked for it.
4 .       The Applicant contends his alcohol problem mitigate s his misconduct.
 5.       The Applicant contends his Administrative Separation Board (ASB) recommended suspending the separation and that other Marines with similar offenses were retained on active duty.

Decision

 Date : 20 1 2 0725            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 equi ty and propriety. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 111 ( Drunken or reckless operation of a vehicle, aircraft, or vessel , on or about 30 January 2010 at 2355 physically controlled a vehicle while intoxicated/drunken ) and Article 134 ( General Article - Disorderly conduct, drunkenness , refused to submit to a blood alcohol or breath alcohol test ) , and one civilian arrest . Based on the offense s committed by the Applicant, command administratively processed for separation . When notified of a dministrative separation processing using the procedure, the Applicant waived rights to submit a written statement but exercised his rights to consult with a qualified counsel and request an administrative board . By a vote of 3-0 , the ASB recommended to separate the Applicant from the Marine Corps with a General (Under Honorable Conditions) characterization of service. The ASB further recommended that the separation should be suspended. The Separation Authority did not approve the recommendation and ordered the Applicant separated with a General (Under Honorable Conditions) discharge.

: (Nondecisional) The Applicant seeks an upgrade for 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.

: (Nondecisional) The A pplicant seeks to have his accrued leave and final pay refunded. 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. All pay that is due to a Marine at the time of separation is used to offset any indebtedness to the government. The NDRB is not authorized to upgrade a discharge for pay recoupment.

 Issue 3: (Decisional) (Equity/Propriety) RELIEF NOT WARRANTED. The Applicant contends he was improperly assigned to independent duty and did not receive help when he asked for it. After a thorough review of the records, the NDRB could find no evidence, nor did the Applicant provide any, that he was inappropriately assigned, inadequately trained, or denied the help he asked for. The NDRB determined the discharge was proper and equitable. Relief denied.




: (Decisional) ( ) . The Applicant contends that his alcohol issues impaired his ability to serve on an ind ependent duty assignment . Documentation in the Applicant ’s record did indicate that, while in service, he received Impact, Outpatient, and Inpatient rehabilitation treatment for his alcohol problems and failed all three levels . When reviewing a discharge, the NDRB does consider the extent to which a medical problem and other issues might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB also recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due . Although it is quite evident that the Applicant suffered from alcohol dependency, the Board concluded that his alcohol depen dency did not lessen the severity of his misconduct, nor was it of sufficient nature to exculpate the Applicant’s misconduct. Relief denied .

Issue 5: (Decisional) ( ) . The Applicant contends his A SB recommended suspending the separation and that other Marines with similar offenses were retained on active duty. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . Further, the Separation Authority had the authority to disapprove the ASB’s recommendation to suspend the discharge. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted. 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 GENERAL (UNDER HONORABLE CONDITIONS) 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), 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

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