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USMC | DRB | 2012_Marine | MD1200282
Original file (MD1200282.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111115
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)       19940908 - 19950709     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950710     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970507      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 78
MOS: 7300
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

I n Hands of Civil Authorities : 19961021 - 19961023, 3 days

NJP:

- 19961127 :      Article (General A rticle, wrongful use with the intent to deceive, an Armed Forces Identification Card)
         Awarded: Suspended:

- 19961227 :      Article (False official statement , “I have not driven while on restriction . ” )
         Article (General A rticle, 2 specifications )
         Specification 1: Break restriction on or about 19961212
         Specification 2: Break restriction on or about 19961220
         Awarded: Suspended:

- 19970402 :       Article (Absence without leave, go from his appointed place of duty on 19970215)
         Article (Failure to obey order or regulation, playing cards in a restricted status)
         Article 107 (False official statement)
         Awarded: Suspended:

SCM:     SPCM:

CIVIL ARREST:

- 19960718 :       Charges: Loitering [extracted from Applicant’s statements]
- 19961021 :       Charges: Using a false form of identification.

CC:
- NFIR :   Offense: Resisting arrest without violence
         Sentence : NFIR

Retention Warning Counseling :

- 19960715 :       For your wearing of a nipple ring showing your lack of military presence, professionalism, and judgment .

- 19961211 :       For violation of A rticle 134 of the UCMJ, wrongful use with the intent to deceive , an Armed Forces Identification Card and conviction of resisting arrest, without violence, by ci vilian authorities on 19961020.

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 P1900.16E), effective 31 January 1997 until 31 August 2001.

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 his command unfairly targeted him with hazing and punishment due to his injury.
2.       The Applicant contends his command unfairly misled him on his restriction privileges to further punish him.
3.       The Applicant contends his command unfairly withheld Permissive Temporary Additional Duty (PTAD) to assist his paralyzed mo ther for emotional punishment.
4.       The Applicant contends he received a 6105 counseling based on a Marine Corps Order (MCO) that had not been releas ed when the piercing occurred.
5.       The Applicant contends his JAG attorney did not believe it was ethical or proper for the request made to Cherry Point to change his SRB to suit their case.
6.       The Applicant contends his Pattern of Misconduct is improper since the MCO about the piercing was post de facto , and his command granted him driving privileges , then dec eptively claimed they had not.
7.       The Applicant contends his Under Other Than Honorable Conditions characterization is too harsh.
 8.       The Applicant contends his post-service conduct and injuries requiring medical treatment warrant leniency and an upgrade.

Decision

Date: 20130321            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’s record of service included 6105 counseling warnings, for o f the Uniform Co de of Military Justice (UCMJ): Article (Absence without leave, go from his appointed place of duty on 19970215), Article (Failure to obey order or regulation, playing cards in a restricted status),       Article 107 (False official statement, 2 specifications), Article (General A rticle, 3 specifications: Specification 1: Wrongful use with the intent to deceive, an Armed Forces Identification Card, Specification 2: Break restriction on or about 19961212, and Specification 3: Break restriction on or about 19961220) , and civilian conviction for resisting arrest without violence. Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board. However, the Applicant has a separation code of HKA1 on his DD Form 214, which indicates he waived his right to appear before an administrative board.

: (Decisional) ( ) . The Applicant contends his command unfairly targeted him with hazing and punishment due to his injury. The record contained no evidence of any wrongd oing by the Applicant’s command or anyone in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.
: (Decisional) ( ) . The Applicant contends his command unfairly misled him on his restriction privileges to further punish him. The Applicant was found guilty at NJP for driving while on restriction and making a false official statement in regards to the violation . The Applicant admitted that he drove a fellow Marine to the bus station while on restriction without permission and subsequently made a false official statement. The NDRB determined that his contention is without merit and the discharge was proper and equitable. Relief denied.




: (Decisional) ( ) . The Applicant contends his command unfairly withheld P TAD to assist his paralyzed mother for emotional punishment. The Applicant requested PTAD while he was on restriction as part of his NJP punishment. The Applicant requested m ast and was denied. According to the officer conducting the request mast, “ h is mother’s medical situation did not meet [humanitarian reasons] criteria and the [Applicant] was the cause of his current situation. ” The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

4 : (Decisional) ( ) . The Applicant contends he received a 6105 counseling based on a n M CO that had not been released when the piercing occurred. The Applicant was counseled on wearing a nipple ring on 15 July 1996. ALMAR 194/96 , which prohibit ed the attaching, affixing, or displaying objects, articles, jewelry , or ornamentation to or through their skin , was released on 16 May 1996, two months prior to the Applicant’s counseling . It was the Applicant’s responsibility to conf o rm to all orders and regulations; therefore, the NDRB determined that the 6105 counseling was proper. Relief denied.

5 : (Decisional) ( ) . The Applicant contends his JAG attorney did not believe it was ethical or proper for the request made to Cherry Point to chan ge his SRB to suit their case. The Applicant did not elaborate or provide any information on what the command allegedly did to his SRB or how it adversely affected the Applicant. The record contained no evidence of any wrongdoing by the Applicant’s command or anyone in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

6 : (Decisional) ( ) . The Applicant contends his Pattern of Misconduct is improper since the MCO about the piercing was post de facto , and his command granted him driving privileges , then deceptively claimed they had not. As previously discussed, the NDRB found no impropriety or inequity in the Applicant’s stated issues in regards to the 6105 counseling on his nipple piercing and his misconduct while driving on restriction. Regardless, even ignoring these two incidents, the Applicant had a clear pattern of misconduct per the Marine Corps Separation and Retirement Manual . In addition to the two incidents in contention, the Applicant had another 6105 counseling, two NJPs, and two civilian arrests. The NDRB determined that the Applicant’s contention is without merit. Relief denied.

7 : (Decisional) ( ) . The Applicant contends his Under Other Than Honorable Conditions characterization is too harsh. 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.

8 : (Decisional) ( ) . The Applicant contends his post-service conduct and injuries requiring medical treatment war rant leniency and an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct or achievements in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The NDRB conducted a thorough review of the available records, to include significant, credible evidence submitted by the Applicant. After detailed analysis and careful consideration of the facts and unique circumstances surrounding the Applicant’s record, and the substantial post-service evidence submitted on his behalf, the Board determined that partial relief was warranted in this case. Accordingly, the Applicant’s characterization of service shall change to General (Under Honorable Conditions). Partial relief granted. Full relief to Honorable was not granted due to the frequency of misconduct during his service.

Summary: After a careful review of the Applicant’s post-service documentation and official service records, and the facts and circumstances unique to this case, the Board found the discharge was proper and equitable at the time of discharge. However, the NDRB determined relief is warranted based on equitable grounds. The NDRB voted unanimously to upgrade the characterization of service to but the narrative reason for separation shall remain . The Applicant is not eligible for further reviews from the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.


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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