Search Decisions

Decision Text

USMC | DRB | 2011_Marine | MD1101586
Original file (MD1101586.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110614
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) Dates not found Active: 19970619 - 19980518 ( GEN / UNSAT PERFORMANCE)
         USMCR (DEP) 19990430 - 1990504

Period of Service Under Review:
Date Current Enlistment Began : 19990505          Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020425      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 53
MOS: 0121
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , CoC , LoA

Periods of UA / CONF : UA: 20020123-20020124 ( 2 days ) / Periods of CONF:

NJP:

- 20020131 :      Article (Failure to obey a lawful order)
         Awarded: Suspended:

- 20020328 :      Article (Break restriction)
         Awarded: Suspended:

SCM:

- 20010116 :       Art icle (General order, 2 specifications )
         Specification 1: Falsely pres en ted, to AT&T, Pilgrim Telephone, a Navy Federal Credit Uni on Visa Classic Card, not of her own, for n etwork t elephone s ervice, NBS, WTN, and ATI, a value of $338.10, to wit: long distance telephone services
         Specification 2: Falsely pretend to WWW.XYZ9.com that s h e was an authorized user of LCpl M_’s Navy Federal Credit Union Visa Classic Card, then knowing that the pretense was false, and by means thereof, did wrongfully obtain WWW.XYZ9.com services of a value of about $67.40, to wit: adult entertainment telephone services or membership to an adult internet web site
          Sentence : , EPD ,

SPCM:             CC:





Retention Warning Counseling :

- 20020211 :       For your blatant disregard for orders in which you were directed on three different occasions to mail out the CO’s Newsletter , which you failed to do ; you were involved in a domestic violence incident on 20020122, where you were identified as the aggressor , which led to your arrest by civilian law enforcement authorities . You are advised that these actions will not be tolerated and are not acceptable as a Marine.

- 20020327 :       For your recent NJP held on 20020326 for Article 134.

- 20020327 :       For my recommendation for administrative separation per Marine Corps Order P1900.16F (Marine Corps Separation Manual) paragraph 6210.3 by reason of pattern of misconduct.

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 ”
         “ 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

 Decisional issues : The Applicant seeks an upgrade in the characterization of her service at discharge to General (Under Honorable Conditions) contending that she now suffers from Post - Traumatic Stress Disorder (PTSD) and is now disabled with a service-connected disability.

Decision

 Date: 20 1 1 1005           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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant entered military service at age 18 (17 with parental consent upon entering the Delayed Entry Program) on a four-year enlistment contract in the United States Army; she was discharged approximately one year later due to unsatisfactory performance after amassing 3 nonjudicial punishments and revealing a history of illegal drug use that included LSD, marijuana, and amphetamines . The Applicant enlist ed in the Marine Corps in May 1995 with a wa i ver for her previous military service separation from Headquarters, Recruiting Command. The Applicant’s record of service during her current enlistment i ncludes three paragraph 6105 retention-counseling warning s , two nonjudicial punishments , and a summary court - martial for violations of the Uniform Code of Military Justice (UCMJ) as follow s :
•         Article 92 (Failure to obey a lawful order or regulation )
•         Article 1 34 ( Breaking r estriction)
•         Article 1 34 ( Falsely presenting herself as someone else and using their bank account access to secure services (2 specifications) .

The Applicant completed 2 years and 11 months of h er four-year obligated service contract. Sh e was discharged involuntarily from the Marine Corps due to Misconduct, specifically, for having established a pattern of misconduct as defined by paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on a pattern of misconduct; that separation from the service in the Applicant’s case was warranted; and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted. On 19 April 2002 , the Separation Authority directed the Applicant’s discharge for the reason as stated and further specified that s he receive an RE-4 reenlistment code - not recommended for reenlistment.

The NDRB reviewed the Applicant’s discharge package. On 0 1 April 2002 , the Applicant was advised of h er rights pursuant to administrative separation. Sh e acknowledged understanding of th e basis for separation (Misconduct - Pattern of Misconduct) and the proposed recommendation for a characterization of service at discharge of Under Other Than Honorable Conditions. The Applicant chose to exercise h er right to consult with qualified military counsel , but chose to not seek an administrative discharge hearing board to present h er case for retention . Additionally, s he declined to provide written matters for the Separation Authority’s consideration. The Applicant did not submit any formal evidence or documentation to rebut the NDRB’s presumption of regularity in governmental affairs or to challenge or refute any of h er misconduct.





(Decisional Issue) ( ) - . The Applicant seeks an upgrade in the characterization of her service at discharge to General (Under Honorable Conditions), contending that she suffers from PTSD and is disabled with a service - connected disability. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. In accordance with the MARCORSEPMAN, a service member may be discharged involuntarily when their conduct or performance of duties meets one of the established reasons for separation. 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. The Separation Authority and the Staff Judge Advocate reviewed the evidence as contained in the Applicant’s recommendation for separation. They determined that the Applicant’s misconduct of record supported the conclusion that the Applicant had an established pattern of misconduct, that the Applicant had been counseled appropriately regarding retention and failure to take corrective action, that the retention warning was violated, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. The Applicant’s separation was administrative in nature, not punitive. Although h er discharge was the result of misconduct, it was not part of a punitive punishment awarded at a trial by court-martial, which could have resulted in a substantially more harsh discharge. The NDRB determined that the separation was proper as issued and that no change to the narrative reason for separation is warranted . R elief based on is sues of propriety is denied.

The Applicant contends h er problems were attributed to PTSD. The Applicant’s service record documents no combat service or operational deployments. The government enjoys a presumption of regularity in the conduct of its affairs ; t he Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support the issue. The NDRB found no medical diagnosis in the record to support the Applicant ’ s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support h er claim. The Applicant’s medical record does document that she was treated by appropriately credentialed mental health care providers , both while in the Army and during her enlistment in the Marine Corps. She was diagnosed with Alcohol Abuse, Borderline traits of a personality disorder, and was treated for Paraphilia, not otherwise specified. The Applicant’s record also documents a physical assault sustained in January 2002, followed by mental health treatment and evaluations for suicidal ideations. While s he may feel that this was the underlying cause of h er misconduct, the record clearly reflects willful misconduct and demonstrated s he was unfit for further service. Relief not warranted .

 A service member’s characterization of service is founded on the recognition of performance and conduct and is not necessarily dependent upon the narrative reason for separation. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. However, an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. While the Applicant may feel h er mental health, youth , or immaturity was the underlying cause of h er misconduct, s he provided no documentation or explanation in support of this claim.

The Applicant’s record of performance and conduct reflected a documented pattern of misconduct. Additionally, the Applicant’s service record documents that s he was counseled - formally - regarding possible separation if s he failed to take corrective actions and comply with the expected standards of conduct of a Marine in the Unites States Naval Service. After reviewing the Applicant’s official service record, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of h er service, documented conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service. As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. R elief denied.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain MISCONDUCT. 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, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .


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

Similar Decisions

  • NAVY | DRB | 2012_Navy | ND1200268

    Original file (ND1200268.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks a change in her RE-code to reenlist into the Armed Forces.2. 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. ” Additional Reviews : After a document...

  • NAVY | DRB | 2011_Navy | ND1101877

    Original file (ND1101877.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. The NDRB is not authorized...

  • USMC | DRB | 2014_Marine | MD1400254

    Original file (MD1400254.rtf) Auto-classification: Denied

    Based on the Applicant’s unexcused absences from scheduled drills, her command administratively processed her for separation. ” 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does...

  • USMC | DRB | 2010_Marine | MD1000449

    Original file (MD1000449.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT ,...

  • USMC | DRB | 2010_Marine | MD1002022

    Original file (MD1002022.rtf) Auto-classification: Denied

    The Applicant’s service record Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial by Special Court-Martial, and the discharge process, the NDRB determined that clemency was not warranted. ” 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...

  • USMC | DRB | 2006_Marine | MD0601155

    Original file (MD0601155.rtf) Auto-classification: Denied

    Suspended for 6months.Not appealed.19991101: Administrative separation under other than honorable conditions by reason of misconduct due to a pattern of misconduct was approved by CG, 2dFSSG. 20000209: NJP for violation(s) of UCMJ: Article 86: UA (AWOL) from 1301, 20000121 to 0945, 20000202 (11 days). 20000214: Vacation of suspended administrative separation under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

  • USMC | DRB | 2011_Marine | MD1101561

    Original file (MD1101561.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The characterization of service received was appropriate considering the UCMJ violations. ” 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.

  • NAVY | DRB | 2011_Navy | ND1101624

    Original file (ND1101624.rtf) Auto-classification: Denied

    The Separation Authority reviewed the Applicant’s record of service during her enlistment period, determining that the Applicant’s documented misconduct of record did establish the minimum requirement for discharge based on a pattern of misconduct; that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - General (Under Honorable Conditions) - was warranted. The Separation Authority reviewed the Applicant’s record of service during...

  • USMC | DRB | 2013_Marine | MD1300915

    Original file (MD1300915.rtf) Auto-classification: Denied

    The record clearly shows the Applicant was discharged for a Pattern of Misconduct and not for medical reasons. In addition, there is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. ” 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...

  • USMC | DRB | 2008_Marine | MD0800393

    Original file (MD0800393.rtf) Auto-classification: Denied

    either which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record, Discharge Process and evidence submitted by the Applicant, the Board found Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO...