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USMC | DRB | 2012_Marine | MD1200190

Original file (MD1200190.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20111101

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)       20020801 - 20030526     Active:          20030527 - 20070711

Period of Service Under Review:
Date of Current Enlistment: 20070712     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110328      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 82
MOS: 4421
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) LoA (9) CoC CoA (5) MM

Periods of CONF :

NJP:

- 20090501 :       Article (Absence without leave), 2 specifications
         Specification 1: 0800, 20090415
         Specification 2: Appointed place of duty on 20090417
         Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation, 2 specifications )
         Awarded: Suspended:

- 20110126 :      Article (Absence without leave - failed to report to your appointed place of duty on six separate occasions)
         Awarded: Suspended: Vacate Suspension of RESTR EPD on 20110303

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090327 :       For unauthorized absence and failure to obey order or regulation. On 20090313, at or around 0550, you were UA from your appointed place of duty. On 20090319 you failed to obey a lawful order that was issued to you, in that you slept in the Law Center.

- 200 9 0701 :       For two specifications of unauthorized absence, insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer and two specifications of failure to obey order or regulation. On 20090415, at or around 0800, was UA from appointed place of duty. On 20090417, without authority,

         abandoned your appointed place of duty. On 20090416, you were disrespectful in deportment toward a SNCO. On 20090331, having knowledge of a lawful order issued to you, an order which it was your duty to obey, negligently failed to obey. On 20090407 to 20090408, was derelict in the performance of your duties in that you willfully by culpable inefficiency failed to perform the duties that were assigned to you.

- 20100823 :       For your deficiencies in performing regular duties on a day to day basis that are routine in nature. Specifically, unauthorized absence. You have continuously come to work late and to other appointed places of duty. Insubordinate conduct toward a Warrant Officer, Noncommissioned Officer or Petty Officer by not staying in your boundaries with your NCOs and SNCOs by being disrespectful.

- 20101220 :       For failure to go to your appointed place of duty, Joint Law Center at 0730, 20101115, 0730, 20101116, 0730, 20101117, 1300, 20101117, 0730, 20101118, 0730, 20101205, 0715, 20101207, 1300, 20101209 and 0720, 20101210.

Administrative Corrections to the Applicant’s DD 214

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

         “ ”

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.       The Applicant contends she received unfair treatment at her command.
2.       The Applicant contends she did not receive proper medical attention.
3.       The Applicant contends her record of service outweighs her misconduct.

Decision

Date : 20 1 2 1126          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 Board did complete 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 warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 3 specific ation s - 0800, 20090415; Appointed place of duty on 20090417; failed to report to your appointed place of duty on six separate occasions ), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ), and Article 92 ( Failure to obey order or regulation, 2 specifications ) . Based on the offense s committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived her rights to consult with a qualified counsel and submit a written statement. However, the Applicant h as a HKA1 separation code on her DD Form 214 , which indicates she wa ived her entitle ment to an administrative board.

: (Decisional) ( ) . The Applicant contends she received unfair treatment at her command. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that s he was wrongfully discharged. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. A review of the records indicates the Applicant was properly notified of separation processing for a Pattern of Misconduct and was equitably discharged Under Other Than Honorable Conditions. Relief denied.

: (Decisional) ( ) . The Applicant contends she did not receive proper medical attention. The government presumes regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her claim. The Applicant did not provide any evidence to support her claim. Her statement alone does not overcome the government’s presumption of regularity in this case. T he Board concluded the Applicant’s discharge was proper, and the characterization was equitable and consistent with that given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant stated she served five years without any trouble , suggesting her record of service warrants consideration for upgrading her characterization of service to Honorable . The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge 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 | 2012_Marine | MD1200190

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