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USMC | DRB | 2012_Marine | MD1200728
Original file (MD1200728.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120207
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)       19940217 - 19941031     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19941101     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19970212      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 12 D a y ( s )
Education Level:        AFQT: 48
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):     

NJP:

- 19961113 :      Article (Failure to obey order or regulation)
         Awarded: Suspended: Suspension vacated 19961127

- 19960926 :      Article (Absence without leave , 19960708-19970802, 25 days)
         Awarded: Suspended:

SCM:

- 19961205 :      Article (Absence without leave , 2 specifications )
         Specification 1: Restriction and EPD sign in on 0630, 19961122
         Specification 2: Restriction and EPD sign in on 0630, 19961124
         Article 90 (Assaulting or willfully disobeying superior commissioned officer, 2 specifications )
         Sentence: (19961205-19961228, 24 days)

SPCM:    CC:

Retention Warning Counseling:

- 19960926 :      For lack of integrity and judgment related to misappropriation of private property, specifically a cassette tape stolen from the PX on 19950624.

- 19961105 :      For alcohol - related incident and poor judgment , specifically, reporting for duty in civilian clothes and wearing earrings, a direct violation of Marine Corps established uniform regulations. Overindulgence in alcohol during your off duty hours is not an excuse to violate the standards of good order and discipline required of a Marine.


Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         
         “ 02 02 01 ”
          “ ”
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 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 requests an upgrade to qualify for VA benefits.
2.       The Applicant contends his misconduct was due to personal problems.
 3.       The Applicant contends his discharge was unfair and based upon unfair charges.

Decision

 Date: 20 1 30124            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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards 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 (Absence without leave, 1 specification) and Article 92 ( Failure to obey order or regulation, 1 specification) , and for of the UCMJ: Article 86 ( Absence without leave, 2 specifications ) and Article 90 (Assaulting, willfully disobeying superior commissioned officer, 2 specifications) . Based on the offenses committed by the Applicant, command administratively processed for s eparation. When notified of administrative separation processing using the procedure for Misconduct (Minor Disciplinary Infractions) , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Applicant’s c ommanding o fficer provided the following comments in his recommendation for administrative separation, “Despite efforts to encourage him toward honorable, productive service, he has responded with further acts of misconduct. ”

: (Nondecisional) The Applicant requests an upgrade to qualify for VA 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 re - characterization 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. Furthermore, 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.

: (Decisional) ( ) . The Applicant contends his misconduct was due to personal problems. While the Applicant may feel that his family difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. The Applicant contends the characterization of his discharge should be upgraded because he suffered a lot of setbacks due to his family situation with his wife and child. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable or General discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment s , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.




: (Decisional) ( ) . The Applicant contends his discharge was unfair and based upon unfair charges. 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 the command treated him unfairly or that the charges he was found guilty of were unfair or never occurred . A review of the records shows that all retention warnings and official punishments were acknowledged, in writing, by the Applicant. During the Applicant’s two years and three months of service, he received two retention warnings and was found guilty of numerous serious UCMJ violations at two NJPs and a summary court-martial. Violations of UCMJ Article s 90 and 92 are considered serious offenses for which a punitive discharge is authorized as the result of a special or general court-martial. Further, his average Performance and Conduct marks over his service are 4.1/3.9, respectively, which indicates below-average service. The NDRB, however, did find an error with the assignment of the narrative reason for separation. With his violation of several serious offenses as defined in Appendix 12 of the Manual for Courts-Martial, he should have been notified of administrative separation processing for Misconduct (Pattern of Misconduct) and Misconduct (Commission of a Serious Offense) instead of for Misconduct (Minor Disciplinary Infractions). Per the Marine Corps Separation and Retirement Manual, he did not meet the requirements for Minor Disciplinary Infractions. Since he was not notified of the proper bases for separation, the NDRB voted to change the narrative reason for separation to Secretarial Authority.
As to the characterization of service, 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. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. With his repetitive serious misconduct during his brief service, the NDRB determined he warranted separation from the service, warranted an Under Other Than Honorable Conditions characterization, but was improperly assigned a narrative reason for Minor Disciplinary Infractions. Partial relief warranted in changing the narrative reason for separation to Secretarial Authority.
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 that the Applicant warranted separation and the discharge was equitable, but the narrative reason for separation was improper. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS but the narrative reason for separation shall change to . Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. 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 . T he 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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