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USMC | DRB | 2011_Marine | MD1102089
Original file (MD1102089.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20110907
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19920304 - 19921013     Active:   USMC     19921014 - 19961010
                                    USMC     199610 1 1 - 20000927
                                    USMC     20000928 - 20040322
                                    USMC     20040323 - 20070418

Period of Service Under Review:
Date of Current Enlistment: 20070419     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100524      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 59
MOS: 3043 /8511
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (5) Pistol (4) (4) MCDIR (2) (2) SSDR LoA (3) CoC (5) MM (2)

Periods of CONF :

NJP:
- 20091105 :       Article (Absence without leave , UA, 2 specifications )
                  Specification 1: Failed to go to 0800 s taff b rief meeting , 20091026
                  Specification 2: U A from RSLAX , 0800 on 20091103 until 2359 on 20091104
         Article ( Dereliction of duty , culpable inefficiency f ail ed to maintain section mission capable)
         Awarded: Suspended:

SCM:              SPCM:   CC:

Retention Warning Counseling :

- 20090617 :      For failure to be at appointed place of duty and dereliction of duty. On Wednesday, 27 May 2009 you failed to obey two direct orders given by the Recruiting Station Sergeant Major. At approximately 1045 you kicked a soccer ball in the command building almost striking the RS Sergeant Major. After you were told to stop by him, you did it again. Due to your unwillingness to cooperate and obey orders you were directed by the RS Sergeant Major to report to his office at 1700 for counseling at which time you replied “I ain’t going to be there . ” The RS Sergeant Major then repeated this direct order to you, and you gave the same insubordinate reply, “I ain’t going to be there!” As you stated at 1045, you failed to report to your appointed place of duty. Your failure to obey the lawful orders of your RS Sergeant Major shows a lack of respect, professionalism, maturity , and judgment.



- 20090909 :      For failure to be at appointed place of duty and dereliction of duty. On Tuesday, 8 September at 0800 you failed to report to your point of place of duty in the proper uniform. You were tasked to attend the CO’s weekly staff meeting and conduct the logistics portion of the brief; however, you failed to submit your slides and failed to attend. You were in civilian attire when the brief was to commence. The brief was rescheduled to 1700 due to your lack of readiness. At 1700, you failed to report once more and the staff brief was conducted without you. On Wednesday, 9 September 2009 at approximately 1230 you left your point of place of duty with Sgt B to help his sister jump start her vehicle in Anaheim, CA approximately 45 miles south. You escorting the Sergeant was not required. You left your appointed place of duty during a decisive period for the RS, logistically: the offloading of its almost 100 new tablet laptops. Furthermore, you failed to inform your OIC of your whereabouts. Your OIC called/text messaged you over 10 times; you never returned your phone calls until your return trip. Your lack of sound judgment, failure to notify your OIC of any emergencies or commitments and your failure to be at your appointed place of duty resulted in a dereliction of your duties.

Page 11 Counseling : 2

- 20100201 :       For failure to be within Marine Corps grooming standards . On Monday, 1 February 2010 at 0900 you reported to Recruiting Station Los Angeles without a proper haircut. You are not on a leave status and are required to remain within grooming standards and continue to report in at 0800 1200 1630 every weekday.

- 20100219:      For failing to pay spousal support to his wife as was directed (via AdSep package) by the Commanding Officer of Recruiting Station Los Angeles. On Thursday, 18 February 2010, SNM informed the command that he could not pay at this time and would pay when he could.

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 his discharge was improper based on inaccurate and erroneous information u sed to incorrectly establish a pattern of misconduct.
 2.       Applicant contends his discharge was inequitable based on his superior record of performance over five enlistments and approximately 18 years of honorable service.
Decision

 Date: 20 1 2 0 718            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 two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards 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 , 2 specifications: failed to go to commanding officer staff brief meeting at 0800, 26 October 2009 and UA from R ecruiting S tation L os Angeles from 0800, 3 November 2009 to 2359, 4 November 2009 ) and Article 92 ( Failure to obey an order or regulation, dereliction of duty by culpable inefficiency, failed to maintain section mission capable, 21 October 2009). Based on the offenses committed by the Applicant, his command processed him for administrative separation from the Marine Corps. When notified of a dministrative separation processing using the procedure on 1 February 2010 , the Applicant initially waived rights to consult with a qualified counsel and submit a written statement , but elected to exercise his right to request an administrative separation board . On 8 April 2010, the Applicant, after consulting with qualified counsel , submitted a request to the chain of command for a waiver of the administrative separation board if he could be separated with an Honorable or General (Under Honorable Conditions) characterization of service. After careful review and consideration of the facts and circumstances surrounding the Applicant’s administrative separation processing and his career record of service, the Separation Authority directed that the Applicant be separated from the Marine Corps with a Genera (Under Honorable Conditions) discharge due to Misconduct - Pattern of Misconduct. The Applicant was discharged on 24 May 2010 as directed.

Issue 1 : (Decisional) ( ) . The Applicant contends his discharge was improper based on inaccurate and erroneous information u sed to incorrectly establish a pattern of misconduct. The NDRB conducted a detailed analysis of the Applicant’s record to determine whether his discharge met the pertinent standards for propriety and equity. In addition to the service records, the NDRB conducted a thorough interview of the Applicant to corroborate or verify the circumstances surrounding the documented misconduct of record. After careful consideration and extensive deliberation on the facts and circumstances surrounding the Applicant’s administrative separation from the Marine Corps, the NDRB determined that the Applicant’s discharge was proper for a pattern of misconduct and that no relief was warranted. Relief denied.

Issue 2: (Decisional) ( ) RELIEF W ARRANTED. The Applicant contends his discharge was inequitable based on his superior record of performance over five enlistments and approximately 18 years of honorable service. Although the Applicant’s previous enlistments were honorable and reflected sustained superior performance in service, whe n considering the equity of discharge, the NDRB must consider only the record of service in the current enlistment. After careful consideration and extensive deliberation on the facts and circumstances surrounding the Applicant’s administrative separation from the Marine Corps, the unique circumstances of this case, and the testimony of the Applicant, the NDRB determined that the Applicant’s discharge, though proper, was not equitable. Therefore, the NDRB determined that the characterization of service should be upgraded to Honorable and the narrative reason for separation should change to Secretarial Authority. Relief granted.

 S ummary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the administrative separation process, and the Applicant’s personal testimony during Board proceedings, the Board found the discharge was inequitable at the time of discharge. Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to . 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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