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USMC | DRB | 2011_Marine | MD1101931
Original file (MD1101931.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110803
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)       20031219 - 20041129    Active:   20041130 - 20090329 (HON)
         USMCR ( SMCR ) 20090330 - 20090712

Period of Service Under Review:
Date of Current MOBILIZATION : 20090713   Age at Mobilization : 22
Period of MOBILIZATION : Years Months
Date of Discharge: 20100710      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 39
MOS: 0121/0151
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle , , , (Iraq), , (2), , AFRM (w ith M device ), CoC

Periods of UA / CONF :     SCM:              SPCM:

NJP:    
         -20100310: Unknown Charge ( s ) [extracted from MCTFS, Screen 119, Legal Action Remarks file ]
                           Applicant reduced in rank to E-2/PFC from this NJP

CC:
         - 20100207: Arrested by Havelock, NC police for Driving Under the Influence of Alcohol (BAC 0.10%). Case tried by Judge on 20101021: Verdict – Not Guilty, charges dismissed by the court due to no probable cause for traffic stop.

Retention Warning Counseling : 1
         20080916 – Counseled this date in accordance with Paragraph 6105: recent NJP due to violation of Article 111
         [ Note: paragraph 6105 retention-counseling warning received during previous enlistment period. Pe r MARCORSEPMAN, paragraph 1004.4.A.1, retention counseling warning from a previous enlistment carries forward]

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.       Nondecisional issues : The Applicant seeks an upgrade in discharge characterization and RE-code in order to help facilitate reenlistment. The Applicant seeks to have the NJP received and the resulting punishment, R E - c ode, loss of rank , and forfeiture of pay corrected due to the civilian charges being dropped and a summary judgment of not guilty being awarded.

2.       Decisional issues : The Applicant contends that his discharge was improper; the civilian charges were dropped and the Applicant was found not guilty in the civilian court by a summary judgment.

Decision

 Date: 20 1 1 0915           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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identified one decisional issue to the NDRB . Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent stan dards of equity and propriety.

The Applicant’s record of service included one 6105 retention- counseling warning and one for o f the Uniform Code of Military Justice (UCMJ): Article 111 ( Drunken Driving - specifics of NJP not found in record, but Applicant ’s statement specifies he received the NJP for a DUI). Moreover, the Applicant’s record reflects that he had completed a prior period of Honorable active service and was currently serving on a one-year Active Duty mobilization order as a result of a voluntary Presidential Selective Reserve Call-Up.

The Applicant’s record of service reflects that he was arrested and charged with driving under the influence of alcohol by civilian authorities on 07 February 2010; he was ordered to appear in court on 18 March 2010 in which the charges were then set for trial on 21 October 2010. The command conducted an NJP for the same offense on 10 March 2010; the A pplicant was found guilty and was reduced in rank to PFC. Based on the offense committed by the Applicant, the command chose to process him for administrative separation. The Applicant was notified of the proposed administrative separation on 04 June 2010 using the procedure ; the least favorable characterization of service warranted was General (Under Honorable Conditions) and the reason for separation give was Misconduct ( Commission of a Serious Offense ). In response to the notice of separation , the Applicant chose to exercise his right to consult with qualified legal counsel and elected to submit a written statement to the Separation Authority. The Separation Authority reviewed the prop o sed discharge action and determined that a preponderance of the evidence supported discharge; on 09 July 2010 he directed that the A pplicant be discharged by reason of misconduct due to a P attern of M isconduct pursuant to paragraph 6210.3 of the Marine Corp s Separation and Retirement Manual (MARCORSEPMAN). The Applicant was discharged on 10 July 2010 as directed; he was assigned a re-enlistment code of RE-4 (not recommended for reenlistment).

(Nondecisional Issues ) – The Applicant seeks an upgrade in discharge characterization and RE-code in order to help facilitate reenlistment. The Applicant seeks to have the NJP received and the resulting punishment, R E - c ode, loss of rank , and forfeiture of pay corrected due to the civilian charges being dropped and a summary judgment of not guilty being awarded. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment; t he NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces . Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.


Moreover, the NDRB does not have the authority to change a RE- c ode , remove an NJP , change service records , or reinstate an Applicant; these issues are the domain of the Board for Correction of Naval Records (BCNR). The Applicant should petition the BCNR using DD Form 149. When requesting a change, the Applicant should provide as much documentation regarding the reason for change as possible. The BCNR’s address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

(Decisional issues ) ( ) . The Applicant contends that his discharge was improper; the civilian charges were dropped and the Applicant was found not guilty in the civilian court. In reviewing discharges, the NDRB presumes regularity in the conduct of Government al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

Propriety – The Applicant was notified of the intent to administratively separate him from his active duty period of service (mobilization) pursuant to paragraph 6210.6 of the MARCORSEPMAN , Misconduct (C ommission of a S erious O ffense) . H owever, the Separation Authority changed the narrative reason for discharge to Misconduct ( Pattern of Misconduct ) due to prior incident s of misconduct in his service record (Violation of Article 111 and Article 92 - 2008/2009 ) , coupled with a prior 6105 re tention - counseling warning. In order to establish Misconduct (Pattern of Misconduct) pursuant to paragraph 6210.3 of the MARCORSEPMAN, a minimum of TWO incidents of misconduct occurring within ONE enlistment (period of service) is required and s eparation processing may not be initiated until the Applicant has been counseled pursuant to paragraph 6105. A review of the Applicant’ service record clearly documents that t he above incident s of misconduct occurred in a previous enlistment period in which the Applicant received an Honorable discharge; in accordance with paragraph 1004.4.A.1 of the MARCORSEPMAN , any known misconduct of record does not carry forward into a new period of enlistment or service (mobilization). The Applicant’s current period of service reflects only one incident of misconduct - the nonjudicial punishment dated 03 March 2010 for the civilian DUI; as such, the command did not establish the minimum requirements necessary to establish a pattern of misconduct and the discharge action was improper.

The Applicant contends that his discharge was improper , because the civilian DUI, which was the basis for his NJP, was dismissed in the civilian court due to a lack of probable cause for the traffic stop , thus negating the resulting DUI. However, t he rules of evidence do not apply in NJPs ; an NJP is an administrative function wherein only a preponderance of the evidence is required to determine a finding of guilt. Though the charge was dismissed at trial, the unit commander conducting the NJP did determine that a preponderance of the evidence supported a finding of guilty for Drunken Driving and the resulting reduction in rank , loss of pay, and assigned reenlistment c ode were proper and warranted.

The NDRB determined that the discharge action, as executed, was improper. Relief based on propriety is warranted. In cases where no other reason for separation set forth in the Marine Corps Separation and Retirement M anual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service. There is no other narrative reason for separation that accurately describes the reason the Applicant was separated ; t herefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority .

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned impropriety in the discharge action and that relief , as requested by the Applicant , was appropriate. P articular circumstance s of interest to the NDRB was the credible combat service of the Applicant, his volunteerism to return to active duty as a mobilized reservist for a one-year tour of duty, and the commander and entire chain of command who subsequently assigned him 4.2 and 4.3 P roficiency and C onduct markings upon discharge. By a vote of 5-0, t he NDRB determined that the characterization of service at discharge sh all be changed to Honorable conditions to reflect the P roficiency and C onduct markings the Applicant receive d and that the narrative reason for the discharge shall be changed to Secretarial Authority.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the discharge process, and the evidence provided by the Applicant, the Board found Therefore, the awarded characterization of service shall HONORABLE 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, 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

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