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USMC | DRB | 2012_Marine | MD1200455
Original file (MD1200455.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20111228
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)       20050718 - 20060618     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060619     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090709      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 17 D a y ( s )
Education Level:        AFQT: 52
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):     

NJP:

- 20070112 :      Article (Absence without leave 1600, 20070102 to 1800, 20070112, 10 days)
         Awarded: Suspended:

- 20070711 :      Article 113 (Misbehavior of a sentinel or lookout)
         Awarded: Suspended:

- 20081107 :       Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Consume alcohol on 20081102
         Specification 2: Having unauthorized gues t in barrack s 200811005
         Article (False official statement)
         Article 134 (General A rticle, drunk and disorder causing a disturbance in the barrack s which resulted in an altercation with LCpl B_ and PFC B_ on 20081102)
         Awarded: Suspended:

SCM:

- 20071119 :       Art icle (Absence without leave, 4 specifications )
         Specification 1: Failed to report to Duty NCO on 20070811
         Specification 2: Failed to report to duty at Dam Neck Range 20070925 through 20070929
         Specification 3: Absent from Vehicle Control Point duty on 20070928
         Specification 4: Failed to check in with duty for pre-trial restriction , 20070924 through 20070929
         Article 92 (Failure to obey order or regulation , 2 specifications )
         Specification 1: Consume alcohol under the legal age
         Specification 2: Violate the leave and liberty policy by wrongfully exceeding the boundary limits in Washington DC on 20070924
         Sentence : (20071119-20071213, 24 days)

SPCM:    CC:

Retention Warning Counseling :
- 20070112 :       For your recent NJP held on 20070112 for violation of Article 86 of the UCMJ.

- 20070809 :       For your recent NJP held on 20070718 for violation of Article 113.

- 20071125 :       For your two NJPs taken place on 20070112 and 20070711, also your Summary Court -Martial held on 20071119.

- 20080811 :       For physical confrontation with another Marine.

- 20081107 :       For your recent NJP held on 20081107 for violation of Article(s) 92 x2 , 107 , and 134.73 of the UCMJ.

- 20081219 :       For you approached GySgt G_ on 20081114 for permission to go to the Virginia Beach County Courthouse because you were on restriction in order to complete child support paperwork for the recent birth of your child. You were given permission and escorted down during working hours by LCpl C_, a fire team leader in your squad. While at the courthouse you had your fianc é e meet you there, got married, and returned to 3D FAST Co. On 20081201 you informed GySgt G_ that you w ere married over the phone in the duty hut and needed to complete a marriage package. When questioned by 1STSgt D_ on 20081217 concerning the circumstances surrounding your marriage, you stated again that you were married over the phone. You later admitted that you went to the courthouse under false pretenses and got married.

- 20090104 :       For your three recent NJPs taken place on 20070112, 20070719 , and 20081107.

- 20090104 :       For your 2 NJPs taken place on 20070112 and 20070711, also your Summary Court-Martial held on 20071119.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         
         , should read: “ BUEHNER, Kenneth Wilson ”
         “ ”
        
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 seeks a change in his RE-code to reenlist .
2.       The Applicant contends his discharge was improper , because all of the misconduct was alcohol-related except for his first NJP. He contends he asked for treatment, but it was not provided until after his last NJP.
3.       The Applicant contends his post-service conduct is worthy of consideration.

Decision

Date : 20 1 30110        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, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence ), Article 92 ( Failure to obey order or regulation , 2 specific ation s), Article 107 (False official statement), Article 113 (Misbehavior of a sentinel or lookout), and Article 134 ( General A rticle ) , and for of the UCMJ: Article 86 ( Unauthorized absence , 4 specific ation s) 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. When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) . The Applicant seeks a change in his RE-code to reenlist and states he is currently working with an Army recruiter to rejoin the military . 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 B oard for Correction of Naval Records 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.

: (Decisional) ( ) . The Applicant contends his discharge was improper, because all of the misconduct was alcohol-related except for his first NJP. He contends he asked for treatment, but it was not provided until after his last NJP. Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment. During the Applicant’s less than three years of service, he received eight retention counseling warnings and was found guilty of multiple, serious UCMJ violations at three NJPs and a summary court-martial. There is nothing in the record to show that he was not responsible for his actions or should not be held accountable for his misconduct. The Applicant met the requirements for administrative separation for a Pattern of Misconduct and was properly and equitably discharged Under Other Than Honorable Conditions. Relief denied.

: (Decisional) ( ) . The Applicant contends he has changed his life , has stayed away from drinking, has grown up, and wants the opportunity to complete what he started and earn an Honorable discharge. T he 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 the passage of time or good conduct 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. Besides the Applicant’s statement on the DD Form 293, he failed to

provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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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