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USMC | DRB | 2011_Marine | MD1101361
Original file (MD1101361.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110509
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)       20061212 - 2007011 5     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070116     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081106      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 39
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle NDSM MM

Period of CONF : 20080507 - 20080530 (24 days)

NJP:
- 20080115 :       Article ( Insubordinate conduct toward a non commissioned officer , 20080101 )
         Art icle (Reckless e ndangerment , 2 specifications )
                  Specification 1: S peeding , 102 mph in a 70 mph zone , 20080101
                  Specification 2: S peeding , 70 mph in a 45 mph zone , 20080101
         Awarded : (to E-1) Susp ended: (suspend 6 months)
         * Suspended sentence vacated on 20080221 due to further misconduct.
- 2008072 1 :       Article ( Insubordinate conduct toward a non commissioned officer, 2 speci f ications )
                  Specification 1: Lied to a S taff Sergeant about attending BCP, 20080701 )
                  Specification 2: Failed to attend BCP as ordered by a S ergeant, 20070701 )
         Awarded : FOP Susp ended: FOP (suspend 6 months)
         * Suspended sentence vacated on 20080725 due to further misconduct
SCM:
- 20080507 :       Art icle (Insubordinate conduct toward warrant officer, non commissioned officer , 3 spec ification s )
                  Specification 1 : D isrespectful in language toward a Corporal , 20080214 .
                  Specification 2: Disrespectful in language toward a Sergeant , 20080331 .
                  Specification 3 : D isrespectful in language toward a First Sergeant , 20080418 .
         Art icle (Making, drawing, or uttering check, draft or order without sufficient funds , 5 specifications )
                  Specification 1 : W rongfully make to MCCS a check with insufficient funds , 20080222 .
                  Specification 2 : W rongfully make to AAFES a check with in sufficient funds , 20080227 .
                  Specification 3 : Wrongfully make to AAFE S a check with insufficient funds , 20080228 .
                  Specification 4 : Wrongfully make to AAFES a check with insufficient funds , 20080229 .
                  Specification 5 : Wrongfully make to AAFES a check with insufficient funds , 20080301 .
          Sentence : (20080507-20080530, 24 days) Susp ended: (suspend 6 months)


SPCM:    CC:

Retention Warning Counseling :

- 20071203 :       For f ailure to follow base regulation s. On 30 November 2007 while traveling aboard base at Camp Lejeune NC , you were stopped by Base PMO for traveling 45 mph in a 35 mph zone. Specifically , you have failed to ensure the safety of yourself as well as others by not paying attention while driving. You were ticketed by North Carolina State Highway Patrol less than one week after receiving your Drivers License and less than one month later you are ticketed for speeding.

- 20080131:      For pattern of misconduct; on 080115 you received NJP for violation of Article 91 of the UCMJ for failing to call your mentor at the prescribed time while on Force Preservation Campaign Plan and Article 143 (x2) for reckless endangerment for excessive speeding, which you were found guilty.
- 20080207:      For failure to maintain Marine Corps body composition standards. Due to insufficient effort on your part , you are currently overweight by 10 pounds and over your allowable body fat measurements by 5 percent. As of 080207, you are assigned to the BCP (1 st ter m) for a period of six months.

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 ”

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 seeks an RE code and discharge upgrade to reenlist in the U.S. Armed Forces.
2.       Applicant seeks a discharge upgrade to obtain veteran benefits.
3.       Applicant seeks a discharge upgrade to increase education and employment o pportunities.
4.       Applicant contends personal stress and mental health issues led to the isolated misconduct that resulted in his separat ion .

Decision

Date: 20 1 2 0 7 25            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. Th e Board complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included three 6105 counseling retention warning s and for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward a noncommissioned officer, 3 specifications: Disobeyed a Corporal by not calling in for his Force Preservation Campaign Plan check in at 2100 as directed, instead he called 1 hour and 43 minutes later at 2243, 1 January 2008; Lied to a Staff Sergeant about attending BCP, 1 July 2008; Failed to attend 30 minutes of BCP prior to his dental appointment as ordered by a Sergeant, 1 July 2008 ) and Article 134 ( General Article, Reckless endangerment, 2 specifications: wrongfully and recklessly operated his POV at 102 mph in a 70 mph zone , conduct likely to cause bodily harm to himself and others, Smithfield, NC on 1 January 2008 ; and wrongfully and recklessly operated his POV at 70 mph in a 45 mph zone, conduct likely to cause bodily harm to himself and others, Jacksonville , NC on 1 January 2008 ) . The record also reflected for of the UCMJ: Article 91 ( Insubordinate conduct toward a noncommissioned officer, 3 specifications ) and Article 123 ( Making, drawing, or uttering check, draft or order without sufficient funds , 5 specifications ) . Based on the repeated and serious nature of the offenses committed by the Applicant, his command administratively processed him for separation in accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) . When notified of a dministrative separation processing using the procedure on 14 August 2008 , the Applicant elected to exercise rights to consult with a qualified counsel and r equest an A dministrative S eparation B oard (ASB) . While awaiting administrative separation from the Marine Corps, the Applicant continued to commit misconduct as evidenced by a Page 11 counseling (dated 28 August 2008) . The A SB was conducted on 19 September 2008. Upon conclusion of the board proceedings , the three - member panel found: (by majority vote) that a preponderance of the evidence proved the Applicant committed the misconduct; (By majority vote) the Applicant should be separated from the Marine Corps; (By majority vote) the Applicant should receive an Under Other Than Honorable Conditions discharge. On 4 November 2008, the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Pattern of Misconduct. The Applicant was discharged on 6 November 2008 , as directed.

: (Nondecisional) The Applicant seeks an RE code and discharge upgrade to reenlist in the U.S. Armed 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 c an 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.



Issues 2-3 : (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran benefits and to increase education and employment opportunities. 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. Additionally, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Issue 4 : (Decisional) ( ) . The Applicant contends personal stress and mental health issues led to the isolated misconduct that resulted in his separation. The NDRB conducted an exhaustive review of the records and found evidence to support the Applicant’s contention that he was evaluated for mental health related issues. The records indicate the Applicant was evaluated by a mental health physician on 23 October 2007 ( with complaints of sadness and depression regarding geographical distance from his girlfriend). He was diagnosed with Dysthymia and a possible Personality Disorder NOS (not otherwise specified), but he was found fit for full duty with no risk to self or others. The Applicant received a follow-up psychiatric evaluation on 16 January 2008 due to a referral from the Battalion Aid Station Medical Officer. Upon completion of the exam, the Applicant was diagnosed with AXIS I: Major Depressive Disorder , mild, single by history. He was found fit for full duty and referred for stress management class. The records indicate the Applicant received follow-up evaluations in February and October 2008 due to continuing complaints of sadness and at least one incident of suicidal ideation.

After a thorough review, t he evidence of record does not indicate that the Applicant was not responsible or that he should not be held accountable for his actions. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned. After careful consideration of all the available evidence, to include the lengthy period of willful misconduct committed by the Applicant ( December 2007 through August 2008 ) , the Board determined this 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, record entries, and the administrative separation 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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