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USMC | DRB | 2011_Marine | MD1101687

Original file (MD1101687.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110628

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)       20081016 - 20081207     Active:

Period of Service Under Review:
Date of Current Enlistment: 20081208     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100611      H ighest Rank:
Length of Service : Y ea r M on ths 04 D a ys
Education Level:        AFQT: 45
MOS: 2131
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20091203 :       Article (Failure to obey order or regulation, disrespected an NCO)
         Awarded: Suspended:

SCM:

- 20100330 :       Art icle (Absence without leave, 3 specifications )
         Specification 1: Failed to show up for work at 0730, 20100321
         Specification 2: Failed to show up for work at 0730, 20100322
         Specification 3 : Failed to show up for work at 0730, 2010032 3
         Article 91 (Disrespectful to CPL M_ by not going to parade rest, rolling his eyes , and speaking very disrespectful)
         Sentence : CONF 25 days

SPCM:    CC:

Retention Warning Counseling :

- 20090710 :       For lost or misplaced ID card in which case he missed valu a ble class and training time that could prevent him from completing the course and obtaining his MOS of 213 1 (Towed Artillery Repairer).

- 20091106 :       For substandard performance in that you have, on repeated occasions, d isplay ed financial irresponsibility, specifically in numerous overdrafts in your accounts.

- 20091222 :       For article 86, failure to report, specifically on 20091221 you failed to report to work at the prescribed time , you were then found inside of your BEQ room in civilian attire . When room was entered by CWO2 F_ your room was found to be in an unsatisfactory state.

- 20091223 :       For demonstrating a pattern of misconduct, specifically you have been issued a P age 11 entry for destruction of government property, for irresponsible financial management, for failure to report , and received NJP for violation of an order or regulation.

- 20100108 :       For you failed to check in with LCpl W_ at 2100 as per your assignment to High Risk Force Preservation per BnO 5000 (Article 92) , Failure to obey order or regulation.

- 20100322 :       For your recent incident in assaulting a NCO; punching an NCO in the face is unacceptable, also you failed to follow a Staff NCO’s orders and showed total disrespect.

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. The Applicant contends his mental illness mitigates his misconduct.

Decision

Date: 20 1 2 0 822 Location: Washington D.C . R epresentation : PA DVA

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. T he 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 six 6105 counseling warnings , one non-judicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation, disrespected an NCO) , and one s ummary court-martial for violations of the UCMJ: Article (Absence without leave, 3 specifications) and Article 91 (Disrespectful to CPL M_ by not going to parade rest, rolling his eyes , and speaking very disrespectful). B ased on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the administrative board procedure, the Applicant exercised his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative board .

Issue 1: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his mental illness mitigates his misconduct. In a statement provided on behalf of the Applicant, a Veteran Service Officer stated that the Applicant is severely mentally ill and entered service with this illness that he hid from the Marine Corps at the urging of his recruiter. The NDRB conducted a detailed review of the Applicant’s service records and found no indication of mental illness. After the Applicant received six retention warnings and was found guilty at NJP and a summary court-martial, he was properly and equitably discharged with an Under Other Than Honorable Conditions characterization of service. There is nothing in the record that shows the Applicant was not responsible for his actions or was not accountable for his misconduct. 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), 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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USMC | DRB | 2011_Marine | MD1101687

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