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USMC | DRB | 2011_Marine | MD1101925
Original file (MD1101925.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110810
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)       20091001 - 20091012     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20091013     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110211      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 63
MOS: 3043
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF : 20101126-20110113, IHCA ( 49 days )

NJP:

- 20100930 :      Article (Absent from appointed place of duty 20100826)
         Awarded: Suspended:

SCM:     SPCM:

CC:     

         - 20100520 : Offense: Operating a vehicle under the influence, obstruction of official business and resisting arrest.
         Sentence : Fine $1088.00, jail for 180 days with 166 suspended for two years, and 180 days loss of
         license. [Extracted from Commanding Officer’s letter dated 20100806 and 20100810.]

Retention Warning Counseling:

- 20100401 :      For failure to obey a lawful order, specifically, underage drinking and drunken and reckless operation of a motor vehicle. While on leave, I did operate a motor vehicle recklessly (hitting a parked car) while under the influence of alcohol on 20100112.

Page 11 Counseling: 1

- 20100805 :       Concerning a warrant issued for my arrest in Wayne County, OH. The charges against me are felony burglary, theft, criminal damaging/endangering, and drug abuse. I am accused of stealing $910 worth of marijuana, $400 worth of cash, $310 worth of coins, and causing damage to a sliding door in the amount of $200. This type of behavior will not be tolerated in the Marine Corps as it disrupts the good order and discipline of a unit.

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 P1900.16E), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 92 , 111, and 134 .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Applicant contends her discharge was improper/inequitable based on a civil 3rd degree felony charge that she was acquitted of in civil court after release from the Marine Corps.

Decision

 Date: 20 1 1 0 9 22            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 . The Board complete d 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 one 6105 rete n tion counseling warning (1 Apr 2010) for failure to obey a lawful order, underage drinking , and drunken and reckless operation of a motor vehicle on 12 Jan 2010 and one Page 11 Counseling (5 Aug 2010) due to a warrant issued for her arrest in Wayne County, OH related to felony burglary, theft, criminal damaging/endangering, and drug abuse . The record also reflected one civil conviction (20 May 2010) for o perating a vehicle under the influence, obstruction of official business , and resisting arrest , and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , from appointed place of duty, 26 Aug 2010 ) . On 29 Nov 2010, the Applicant was arrested and placed in civil jail awaiting civil prosecution where she remained until release on 13 Jan 2011 (49 days) . Based on the offenses committed by the Applicant, her command administratively processed for separation. When notified of a dministrative separation processing using the procedure on 6 Aug 2010 as the result of a warrant being issued for her arrest in Ohio , the Applicant waived her right to submit a written statement, but elected to exercise rights to consult with a qualified counsel and request an administrative separation board. However, the separation code ‘HKQ1’ listed on her DD Form 214 ( B lock 26) indicates she waived her right to the administrative board proceeding. The Applicant was separated from the Marin e Corps on 11 Feb 2011 with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense) .

: (Decisional) ( ) . The Applicant contends her discharge was improper/inequitable based on a civil 3rd degree felony charge that s he was acquitted of in civil court after release from the Marine Corps. The Board conducted a detailed examination of the Applicant’s service records to determine whether her discharge met the pertinent standards of propriety and equity. Due to the civil court acquittal (2-3 May 2011), the Board overlooked all service record entries related to the incident that occurred on or about 14 Feb 2009 and focused on the remaining entries in her record of service. The Board noted that the Applicant, while on boot camp leave, was involved in a motor vehicle accident in which she was cited (civil) and counseled (USMC) for driving under the influence (DUI), underage drinking, reckless driving (hitting a parked car), and obstructing justice. She received a 6105 retention warning for this misconduct on 1 Apr 2010. On 20 May 2010, the Applicant was found guilty in civil court of DUI, obstruction of official business, and resisting arrest. Her sentence included fines and fees in the amount of $1088, 180 days jail time (166 days suspended for two years), and loss of license for 180 days. Additionally, the record reflected an NJP ( 30 Sep 2010 ) for violati on of UCMJ Article 86 in being absent from her appointed place of duty on 26 Aug 2010. After thorough analysis and deliberation, the Board found the Applicant’s discharge was proper and equitable at the time of her separation. However , after excluding the misconduct for which she was subsequently acquitted post-service and based on the remaining misconduct of record (NJP for UA; 6105 retention warning , and civil conviction ) , the Board determined that p artial r elief in upgrading her discharge to General (Under Honorable Conditions) was w arranted. Full relief to Honorable was not granted due to the Applicant’s misconduct of record.



As for the Narrative Reason for Separation, the Board determined that th is shall change to Secretarial Authority based on the Applicant’s civilian court acquittal of the 3rd degree felony charges for which she had been administratively separated . Even though the Applicant had earlier “serious offense” misconduct while on boot camp leave in January 2010, the Marine Corps chose to retain the Applicant and only discharged her for a serious offense over a year later for the civilian arrest for which she was ultimately acquitted.
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 the discharge was proper and equitable at the time of discharge. However , after considering the acquittal finding in civil court that occurred after her discharge , the Board determined that the remaining misconduct of record while in service warranted partial relief in the character of service awarded and the narrative reason for separation . Therefore, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall change to SECRETARIAL AUTHORITY . 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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