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USMC | DRB | 2011_Marine | MD1101277

Original file (MD1101277.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110427

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:         USA (DEP) 20011220 - 20020204    Active: 20020205 - 20050531

Period of Service Under Review:
Date of Current Enlistment: 2007072 4     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100209      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 27
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle KDSM

Periods of CONF :

NJP:

- 20081008 :      Article (Unauthorized absence, less than 24 hours , 2 s pecification s )
                  Specification 1: UA from company formation , 2008 0 815
                  Specification 2: UA from company formation , 2008 0903
         Article (Disobey a lawful order , 2 s pecifications )
                  Specification 1: disobeyed order from GySgt to be at company formation on 2008 0 903
                  Specification 2: diso beyed order from SSgt to be at company formation on 2008 0903
         Awarded : Susp ended:

- 20081208 :       Article (Wrongfully assault ed a noncommissioned officer , 20081115 )
         Article ( Forgery, i ntent to defraud, falsely alter ed SIQ chit , 20081008 )
         Awarded : (to E-2) Susp ended:

- 20090911 :      NFIR
         Awarded : (retrieved from MCTFS) Susp ended: NFIR

- 20091117 :       Article (Insubordinate conduct toward warrant officer or noncommissioned officer , 20091003 )
         Art icle (Failure to obey an order or regulation , 20091003 )
         Art icle (Restriction breaking , 20091003 )
         Awarded : (to E-1) Susp ended:

SCM:              SPCM:    CC:

Retention Warning Counseling :

- 20080715 :       For lack of judgment and blatant disrespect toward an NCO and SNCO . On 24 June 2008, SNM was counseled by an NCO for unauthorized absence. During the counseling SNM walked away. When asked by her SNCOIC what was wrong, SNM ignored him disrespectfully.

- 20080813 :       For lack of judgment and blatant disrespect toward the DNCO/NCO . On 6 August 2008, SNM had a verbal altercation with the (DNCO), at that time SNM was given a direct order to leave and was told that the situation would be resolved at a later time. SNM refused to follow the orders and continued to argue disrespectfully. As the situation escalated, another NCO gave SNM a verbal order to follow the orders given by the DNCO. Immediately SNM became confrontational, belligerent , and disrespectful with the NCO.

- 20081008 :       For recent Company level NJP for violations of A rticles 86 (x2) and 92 (x2) of the UCMJ .

- 20090717 :       For violation of A rticle 128 of the UCMJ, assaulted her roommate by throwing her to the ground after an argument between the two ha d escalated .

- 20091117 :       For recent Battalion level NJP for A rticles 91, 92, and 134 .

Administrative Corrections to the Applicant’s DD 214

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

         “ 2007 07 24 ”
         Block 28, Narrative Reason for Separation, should read: “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 P1900.16F), 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. Applicant contends her discharge was improper/inequitable because of discriminatory treatment she received due to her previous servi ce in the U.S. Army.

Decision

Date: 20 1 2 06 21 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 Applicant identif ied one decisional issue for the Board ’s consideration . Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether her discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications: UA from company formation on 15 August and 3 September 2008 ), Article 91 ( Insubordinate conduct, wrongfully assaulted a noncommissioned officer, spat three times on a superior noncommissioned officer, a C orporal, who was in the execution of his duties, 15 November 2008 ), Article 92 ( Failure to obey an order or regulation, 3 specific ations: Disobeyed order from a Gunnery Sergeant to attend company formation on 3 September 2008; disobeyed order from Staff Sergeant to attend company formation on 15 August 2008; third violation, details NFIR ) , Article 123 (Forgery, intent to defraud, o/o 10 October 2008, falsely alter ed SIQ chit to reflect 15-16 October 2008 versus the original assigned dates of 9-10 October 2008 ) , and Article 134 ( General Article - Restriction, breaking, departed the limits of B arracks 1636 R oom 113 and wrongfully proceeded to the base exchange, after being told by the OOD that she was not authorized and the fact she was only authorized one exchange visit per week while on restriction, 3 October 2009 ) . There was no evidence of trial by courts-martial. Based on the serious and repeated offenses committed by the Applicant, her command administratively processed her for separation. Since t he NDRB did not have the Applicant’s administrative separation package documentation available, it could not determine whether she exercised or waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The separation code HKA1 listed on the Applicant’s DD Form 214 indicates she waived her right to the administrative separation board hearing. The Applicant was separated from the Marine Corps on 9 February 2010 with an Under Other Than Honorable Conditions discharge due to Misconduct ( Pattern of Misconduct ) .

: (Decisional) ( ) . The Applicant contends her discharge was improper/inequitable because of discriminatory treatment she received due to her previous service in the U.S. Army. The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General ’ s Office. Allegations notwithstanding, the NDRB conducted a detailed review of the Applicant’s r ecords to determine whether her discharge met the pertinent standards for propriety and equity. The Applicant’s record reflects a significant history of willful and persistent misconduct to include unauthorized absences, failure to obey orders, insubordinate conduct, assault, and breaking restriction . While s he contends that discrimination and harassment based on her previous U.S. Army service was the underlying cause of h er separation from the Marine Corps, the record clearly reflects h er misconduct to be willful and demonstrated s he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for h er conduct or s he should not be held accountable for h er actions. Per the Marine Corps Separation and Retirement Manual, w hen a service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty

outweigh the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Marines, regardless of h er grade or length of service, and falls short of w hat is required for an upgrade in the characterization of service. Accordingly, and with no evidence to rebut or otherwise question the presumption of regularity in this case, the NDRB determined the Applicant’s issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service and record entries, 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 | MD1101277

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