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USMC | DRB | 2011_Marine | MD1101847

Original file (MD1101847.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20110729

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)       20080616 - 20090126     Active:

Period of Service Under Review:
Date of Current Enlistment: 20090127     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110223      H ighest Rank:
Length of Service : Y ea rs M on ths 27 D a ys
Education Level:        AFQT: 52
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      GWOTSM NDSM LOA

Periods of UA / CONF : CONF 20101109 - 20101202 (24 days)

NJP: 2
- 20100614 :       Article 92 ( F ailure to obey order or regulation, 2 specifications )
                  Specification 1: Wearing IPOD in flak jacket while preparing to operate a tactical vehicle , 20100603
                  Specification 2: Underage drinking , 20100529
         Awarded: FOP RESTR EPD Suspended:

- 20100804 :      Article 91 (Insubordinate conduct toward a noncommissioned officer)
         Article 92 (Failure to obey order or regulation, 2 specifications )
                  Specification 1: Unsat isfactory shave
                  Specification 2: Failed to report to a CWO2 as ordered
         Awarded: RIR (to E-2) FOP RESTR EPD Suspended: FOP (suspend 6 months)

SCM: 1
- 2010110 9 :       Art icle 91 ( Disrespect to a Noncommissioned officer, 20101020 )
         Article 92 (Failure to obey order or regulation)
         Sentence : RIR (to E-1) FOP CONF 30 days (20101109 - 20101202, 24 days)

SPCM: NONE                CC: NONE

Retention Warning Counseling : 4

- 20100512 :       For failure to pass the Marine Corps Physical Fitness Test (PFT) on 13 April 2010 (run 26:46, pull ups 3, crunches 70, total score 132).

- 20100514 :       For assignment to the Marine Corps Body Composition Program (BCP)

- 20100614 :       For recent NJP for violation of UCMJ Article 92 x 2. In that SNM on or about 3 June 2010, was caught wearing an IPOD in his flak jacket while preparing to operate a tactical vehicle aboard Camp Lejeune NC and on 29 May 2010, violated a direct order by drinking alcoholic beverages while underage in BEQ HP 495.

- 20100804:      For recent NJP for violation of Articles 91 and 92 x 2 of the UCMJ in that SNM told a Noncommissioned Officer “ F xxx that, I am going to chow anyway” after the NCO had explained to him that there were tasks to be completed first before SNM could go to chow. SNM then proceeded toward his vehicle disregarding a lawful order to return to the work section. SNM w as identified by a CWO2 of violating MCO 1020.34G for failing to shave before work. SNM was ordered by the CWO2 to inform his SNCOIC of the issue and both report to the CWO2 Monday morning. SNM did not inform SNCOIC of the situation and failed to be present Monday morning.

Page 11 Counseling:
- 20101210: For negligence in accounting for 26 items of CIF issued gear totaling $718.18, on 15 December 2010.

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 he was unfairly separated from the Marine Corps.
2 .       Applicant contends he was not allowed to defend himself at his summary court-martial.
3.       Applicant contends he was verbally abused and physically threatened by his chain of command.

Decision

Date: 20 1 2 0 904          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 NDRB conducted a thorough review of the Applicant’s service records to determine whether his issue met the pertinent standards for propriety and equity. The Applicant’s record of service included four 6105 retention counseling warnings and two non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward a noncommissioned officer , after receiving a lawful order from his NCO he stated to his NCO , “ F xxx that , I am going to chow anyway ” ) and Article 92 (Failure to obey an order or regulation, 4 specifications : w ore an I POD in his flak jacket while preparing to operate a tactical vehicle , 3 June 2010 ; underage drinking , 29 May 2010 ; unsatisfactory shave; and failed to report to a CWO2 as ordered ) . The record also reflected one summary court-martial for violations of the UCMJ: Article 91 ( Insubordinate conduct toward a n oncommissioned officer, disrespectful in language towa rd a Sergeant by saying to him “ this is retarded” and “why are we doing this” or words to that effect, 20 October 2010 ) and Article 92 (Failure to obey an order or regulation , failed to report to First Sergeant at 0630 as directed, reported late at 0653 ). Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the procedure on 2 December 2010 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 3 January 2011, the Applicant’s Regimental Commanding Officer endorsed his administrative separation package, stating , “…Based on my interview, (the Applicant) has no potential for further service. He accepts no responsibility for his actions, shows no remorse , and I am convinced that his performance will not change. I recommend that (the Applicant) be separated with an Under Other Than Honorable Conditions characterization of service . ” On 11 February 2011, the Separation Authority directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Mi sconduct ( Pattern of Misconduct ) .

Issues 1 and 2 : (Decisional) ( ) . The Applicant contends he was not allowed to defend himself at his summary court-martial and was unfairly separated from the Marine Corps. The NDRB conducted a detailed review of the Applicant’s service records to determine whether his discharge met the pertinent standards for propriety and equity. During review of the Applicant’s case, the NDRB noted the following paragraph from the Manual for Courts-Martial United States, “neither the Constitution nor any statute establishes any right to counsel at summary court martial. Therefore, it is not in error to deny an accused the opportunity to be represented by counsel at a summary court martial . However, appearance of counsel is not prohibited … . ” Moreover, th e Board found documentation within the record indicating the Applicant, after being advised of his rights at a summary court-martial preliminary hearing ( conducted 5 November 2010 ) , elected to accept and not r efuse trial by summary court-martial. T he summary court-martial rights advisement form indicated the Applicant was not represented by counsel (civil or military) . Lastly , when notified of processing for administrative separation from the Marine Corps on 2 December 2010, the Applicant waived his rights to consult with qualified counsel, submit a written s tatement, and request an administrative separation board, thereby waiving his right to defend himself from or rebut the proposed administrative separation.

The Applicant submitted statements from fellow Marines . Although the Applicant did not specify that these statements pertained to the charges against him at his summary court-martial, the events described in the letters most closely match up with the charges preferred against the Applicant at summary court-martial. These statements do not exonerate the Applicant of the misconduct for which he was found guilty. The NDRB does not have the authority to re-try the Applicant. If he had evidence to present, he had the right to present it during his trial or at an administrative separation hearing before he was discharged. After careful consideration of all the available evidence, and with no credible evidence submitted by the Applicant 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.

: (Decisional) ( ) . The Applicant contends he was verbally abused and physically threatened by his chain of command. T he 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 Board conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. After thorough analysis, the Board could find no evidence to support the Applicant’s contention of command impropriety , nor did the Applicant provide any . The Applicant’s record of service included four 6105 retention warnings (PFT failure, BCP Assignment, and for multiple violations of UCMJ Articles 91 and 92), two NJPs , and one summary court-martial (for violations of UCMJ Articles 91 and 92). Additionally, he had Proficiency/Conduct marks of 3.1/3.1 over six occasions, reflecting extremely poor performance as a Marine. T he record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his 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 his grade or length of service, and falls short of w hat is required for an upgrade in the characterization of service. Accordingly, the NDRB 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), 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 | MD1101847

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