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USMC | DRB | 2012_Marine | MD1200538

Original file (MD1200538.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120112

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)       20080502 - 20090607     Active:

Period of Service Under Review:
Date of Current Enlistment: 20090608     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 201 1 0 412      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 94
MOS: 2141
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20100415 :      Article (Absence without leave , 1201 20100402 to 0500 20100406)
         Article (Failure to obey order or regulation; to wit, violating his liberty plan and going out of bounds to Chicago, Illinois over the 72-hour liberty period without being granted proper authority to do so. )
         Article (False official statement; Did on or about 5 April 2010, make a false official statement that he missed his ride from Raleigh, NC and that he was on his way to Camp Lejeune, a statement in which he knew to be false. )
         Awarded: Suspended: (Vacated 26 April 2010)

- 20100505:      Article (Absence without leave , o n or about 25 April 2010, failed to go to at prescribed time to battalion restriction muster at 0600 )
         Article 92 ( Failure to obey order or regulation, 2 s pecifications )
         Specification 1: to wit; Battalion policy letter 01-07, Acknowledgment of Assignment to Restriction, an order which it was his duty to obey, did on board Camp Lejeune, NC, on or about 23 April 2010, fail to obey the same by wrongfully using his cellular phone while on Battalion Restriction .
         Specification 2: to wit; Battalion policy letter 01-07, Acknowledgment of Assignment to Restriction, an order which it was his duty to obey, did on board Camp Lejeune, NC, on or about 26 April 2010, fail to obey the same by wrongfully using his laptop computer while on Battalion Restriction.
         Awarded: Suspended:

SCM:     SPCM:    CIVIL ARREST:             CC:

Retention Warning Counseling:

- 20100408 :      For poor attitude, failure to comply with basic orders, and lackadaisical attitude. SNM has stated to other Marines within his platoon that he has no intention of carrying out assigned tasks and that he has no inclination to strive to better himself in any way. In his own words, he “does not give a f- -k . ”

- 20110201 :      For adjustment disorder.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 and Present, paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

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 he was singled out by his peers and superiors because of a personality conflict, was never allowed to meet his full potential in his MOS, and did his best while in service.
2.       The Applicant contends the division psychiatrist told him he could stay in the Marine Corps and likely receive an Other Than Honorable or Bad Conduct discharge or he could leave the Marine Corps. The Applicant contends he accepted the offer to leave with the understanding he would receive an Honorable discharge.

Decision

Date: 20 1 2 1206          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 included 6105 counseling warnings and non-judicial punishments for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications) , Article 92 ( Failure to obey order or regulation, 3 specifications), and Article 107 (False official statement, 1 specification) . The Applicant was also diagnosed with a severe adjustment disorder. Based on his disorder and the recommendation of the d ivision p sychiatrist, his command administratively processed him for separation. When notified of a dministrative separation processing , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

: (Decisional) ( ) . The Applicant contends he was singled out by his peers and superiors because of a personality conflict, was never allowed to meet his full potential in his MOS, and did his best while in service. The Applicant provided no documentation to substantiate his allegations, and there was nothing in his service records to confirm his contentions. A review of his service records, however, reveals two retention warnings and being found guilty of multiple UCMJ violations at two NJPs during his 22 months in service. A retention warning from April 2010 describes the Applicant’s “ poor attitude, failure to comply with basic orders, and lackadaisical attitude. SNM has stated to other Marines within his platoon that he has no intention of carrying out assigned tasks and that he has no inclination to strive to better himself in any way. In his own words, he ‘does not give a f- -k.’” This retention warning and subsequent misconduct points to below-average performance and conduct that warranted separation processing. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Based on the Applicant’s poor attitude and multiple instances of misconduct during his brief enlistment, the NDRB determined his discharge was proper and equitable. Relief denied.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends the division psychiatrist told him he could stay in the Marine Corps and likely receive an Other Than Honorable or Bad Conduct discharge or he could leave the Marine Corps. The Applicant contends he accepted the offer to leave with the understanding he would receive an Honorable discharge. Division psychiatrists do not have the authority to determine whether a servicemember will be separated or retained and what characterization of service that servicemember will receive. They can make recommendations to the Applicant’s commanding officer, but it is only a recommendation. They are not authorized to promise anything. After a commanding officer initiates separation proceedings, he makes a recommendation to the Separation Authority, who makes the final determination as to whether to separate the Applicant and at what level of characterization of service. In the Applicant’s case, the division psychiatrist diagnosed the Applicant with an adjustment disorder and recommended separation. The

Applicant’s commanding officer concurred, initiated separation proceedings, and on 8 February 2011 informed the Applicant, in writing, that he was recommending he be separated with a General (Under Honorable Conditions) characterization of service. The Applicant met the requirements for separation due to Condition Not a Disability (adjustment disorder diagnosis), Misconduct (Serious Offense), and Misconduct (Pattern of Misconduct). The Applicant, in writing, acknowledged this and waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. The Separation Authority determined the proceedings were proper and ordered the Applicant be discharged for Condition Not a Disability with a General (Under Honorable Conditions) characterization of service. After a complete review of the records and separation proceedings, the NDRB determined the discharge was proper and equitable and that relief based on this issue was not 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 | MD1200538

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