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USMC | DRB | 2012_Marine | MD1200441
Original file (MD1200441.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111220
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: HARDSHIP
        
Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20071206 - 20071216     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20071217     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090702      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 79
MOS: 6000
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle Pistol

NJP:

- 20090108 :      Article (Absence without leave , 20080711-20081127, 139 days)
         Awarded: Suspended:

- 20090701:      Article 86 (Absence without leave , 4 specifications )
         Specification 1: Did on 090602, fail to go at the time prescribed, to his appointed place of duty, to wit: casual platoon formation at 2130
         Specification 2: Did on 090620, fail to go at the time prescribed, to his appointed place of duty, to wit: casual platoon formation at 1000
         Specification 3: Did on 090621, fail to go at the time prescribed, to his appointed place of duty, to wit: casual platoon formation at 2130
         Specification 4 : Did on 090622, fail to go at the time prescribed, to his appointed place of duty, to wit: casual platoon formation at 0700
         Article 91: On or about 090625, was disrespectful in langua g e toward a noncommissioned officer who was in the execution of his office, by replying “obviously you don’t know who I am” or words to that effect when directed to reply with either “Yes, Corporal ” or “ No, Corporal. ”
         Article 92: Having knowledge of a lawful order issued by 1STSGT B____k to not lea ve until the following day for a court appearance , did on 090602, fail to obey the same by leaving on 090602.   
         Article 92: On or about 090625, violated a lawful general order, to wit: MCO P1020.34G, by improperly wearing shower shoes with the desert utility uniform.
         Article 134: Did on 090625, wrongfully communicate a threat to CPL R_____r by saying, “We can take off our chevrons right now and see who a real man is,” or words to that effect.
          Article 134: Did on 090625, wrongfully communicate a threat to CPL M_____l by saying, “We can take off our chevrons right now and see who a real man is,” or words to that effect.
         Awarded: Suspended:



SCM:     CC:               Retention Warning Counseling:

SPCM:

- 200904 29 :      Article (Absence without leave, failed to go to afternoon formation on 20090202)
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications )
         Sentence : CONF 151 days [ 53 days of Judge ordered credit, 12 days of Judge ordered , P re-trial : 20090202-20090428, 86 days, a total of 151 days ]

Administrative Corrections to the Applicant’s DD 214

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

          “ ( 139 ) 20080711-20081126, ( 86 ) 20090202-20090428 ”
        
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:                  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 P1900.16E), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 86 (UA greater than 30 days) , 91, 92, and 134 .


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant contends his discharge was based on charges that were inconsistent with the standar d s of discipline in the military service.
2.       The Applicant contends his discharge was improper due to an error o f fact, law, procedure, or discretion and that his rights were prejudiced.
 3.       The Applicant want s his narrative reason for separation changed to Hardship .

Decision

Date: 20 1 30103            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’s record of service did include two non-judicial punishment s (NJP s ) for violation s o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 5 specifications ) , Article 91 (Insubordinate conduct toward a noncommissioned officer, 1 specification), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 134 (General Article - Communicating a threat, 2 specifications). His record of service also included one special court-martial for violation of the UCMJ: Article 86 (Absence without leave, 1 specification) and Article 91 (Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer , 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation . When notified of a dministrative separation processing using the administrative board procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends his discharge was based on charges that were inconsistent with the standards of discipline in the military service . T he NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records reviewed , nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . The preponderance o f the evidence reviewed, to include that provided by the Applicant , including his lengthy statement , supports the conclusion that he deliberately committed the offenses for which he was found guilty at NJP and special court-martial proceedings. He was fortunate to not have received a punitive discharge (i.e., Bad Conduct), instead receiving a more lenient administrative discharge. The Board determined that relief based on this issue was not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was improper due to an error o f fact, law, procedure, or discretion and that his rights were prejudiced. The A pplicant provided documentation in an effort to support his claim. Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. Based on the guilty findings at the NJP proceedings, it is presumed that the Applicant did commit the offenses. Based on the offenses committed by the Applicant, his command administratively processed him for separation. After a thorough review of his service record and the documentation provided by the Applicant, the NDRB discerned no impropriety or inequity in the discharge process. R elief based on this issue is not warranted. Relief denied.






: (Decisional) ( ) . The Applicant wants his n arrative r eason for s eparation changed to Hardship. A Marine may request discharge based on hardship if the hardship is not temporary, the Marine has made every effort to remedy the situation, separation will eliminate or materially alleviate the condition, and there is no other means of alleviation reasonably available. The Applicant did not provide sufficient information to the NDRB to demonstrate he properly requested discharge on the basis of hardship or that he met the criteria for a discharge based on hardship. However, even if the Applicant could show he met the criteria for discharge based on hardship, it would amount to neither a justification nor a defense for his extended period of unauthorized absence or his court-martial conviction. Therefore, after reviewing the Applicant’s service record, and the documentation provided by the Applicant, the NDRB discerned no impropriety or inequity in the assigned narrative reason for separation and determined that relief based on this issue was not warranted. He received a proper narrative reason for separation that accurately describes why he was discharged. 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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