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USMC | DRB | 2011_Marine | MD1101970
Original file (MD1101970.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110816
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to: OR
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20050329 - 20050821     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050822     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080829      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 52
MOS: 0121
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      ( 2 ) CoC

Periods of CONF :

NJP:

- 20070111 :      Article (Absence without leave , from appointed place of duty , PT field, 20061214 )
         Article (Failure to obey an order or regulation , MCO P1020.34G, wore earrings )
         Awarded: RESTR EPD Suspended:

- 20070129 :       Article (Insubordinate conduct toward noncommissioned officer, assaulted an NCO , 20070113 )
         Awarded: (to E-2) (30 days) Suspended: (suspend 6 months)
         [* Suspen ded sentence vacated on 20070405 due to further misconduct ]

- 20070509 :       Article (Insubordinate conduct toward noncommissioned officer, disrespected an NCO, 20070330 )
         Awarded: (to E-1) (60 days) Suspended: (suspend 6 months)

SCM:     SPCM:    CC:

CIVIL ARREST:

- 200 8 040 1 :       Charges: For having a warrant issued for having numerous outstanding traffic tickets .
         [ * Extracted from Commanding Officer’s letter dated 20080811 ]

Retention Warning Counseling :

- 20060425 :       For unauthorized absence. Specifically, you were UA upon returning from annual leave. Your leave expired at 1200 on 20060418 and you did not check back in off of leave until 1830 on 20060418.



- 20061205 :       For unauthorized absence. Specifically, you were instructed to be at the BST class conducted at the H&S BN classroom at 1700 on 20061127. SNM was not present for roll call.

- 20080204 :       For unauthorized absence. Specifically, you were UA to IPAC on the morning of 20080204, resulting in being over a half an hour late. This is the third time being UA since 20080115, less than a month. This behavior is unacceptable and is contrary to the good order and discipline of your section, command, and the Marine Corps.

- 200804 0 x :       For your arrest on 20080401 , when you were pulled over by civilian authorities due to a traffic violation. You were arrested and taken to the Beaufort County jail due to having a bench warrant for your arrest stemming from numerous outstanding traffic violations. Your inability to take care of your personal issues has placed you in a situation which prevents you from carrying out your military duties. Additionally, you have allowed yourself to become financially unstable and you borrowed money from Marines within your section that to date remains unpaid.

- 20080708 :       For lack of judgment resulting i n police involvement and your arrest by the Savannah Police Department.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ ”
         “ MARCORSEPMAN 6210.3 ”
         “ JKA1 ”

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

 1.       Applicant seeks a discharge upgrade to obtain veteran benefits.

Decision

 Date: 20 1 2 1004            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. T he Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, UA from H&S B attalion PT field, 14 December 2006 ), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications: W as disrespectful in language toward a Corporal by stating “learn your job before telling me how to do mine” and “no the fxxx I’m not” when told he would be standing phone watch, o/o 30 March 2007; assaulted an NCO in building 146 on 13 January 2007 ), and Article 92 ( Failure to obey an order or regulation, MCO P1020.34G, wore earrings while driving aboard MCRD Parris Island, SC, o/o 26 December 2006 ) . The Applicant also had a civil arrest for having a warrant issued for having numerous outstanding traffic tickets. Based on the repeated and serious civil and military offenses committed by the Applicant, his command processed him for administrative separation. When notified of a dministrative separation processing using the procedure on 11 August 2008 , the Applicant elected to exercise his right to submit a written statement in rebuttal to the proposed separation, but waived his right to seek qualified counsel. On 14 August 2008, the Separation Authority directed that the Applicant be separated from the Marine Corps with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct. The Applicant was discharged on 29 August 2008 as directed.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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. Additionally, t he NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge .

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. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful and repeated failure to m aintain the requirements of conduct expected of all Marines, regardless of his grade or length of service. Accordingly, the NDRB determined that the Applicant’s discharge was proper, equitable , and in accordance with the applicable orders and directives in effect at the time of his discharge. 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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