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Decision Text

USMC | DRB | 2012_Marine | MD1200755
Original file (MD1200755.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120214
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)       20050606 - 20051030     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051031     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100924      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 24 D a y ( s )
Education Level:        AFQT: 92
MOS: 2847
Proficiency/Conduct M arks (# of occasions): ( 13 ) / ( 13 )        Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) (2)

Periods of CONF :

NJP:

- 20090805 :       Article (Absence without leave - Remedial Physical Conditioning Program 0500-0600, 20090804)
         Awarded: Suspended:

- 20091116 :      Article (Absence without leave, 2 specifications )
         Specification 1: 1545-1713, 20091105
         Specification 2: 1645-1748, 20091114
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20060310 :       For knowingly placing the required equipment for the return Crucible hike into your sea bag (not carried), leaving only a Gore-Tex parka in your ALICE Pack (carried). Additionally, you fell out of the Crucible hike twice complaining of an ailment, which was later found to be false by the Medical Officer. Your blatant disregard for orders, as well as your lack of intestinal fortitude, is not indicative of, nor characteristic with, the Marine Corps’ Core Values. Lack of integrity is a very serious matter. Marines on a daily basis place their lives in the hands of Marines they trust because of integrity. Without integrity, the trust that we instill into our Marines would no longer exist, thus redefining the Marine Corps Core Values. The cultivation of integrity begins here at recruit training.

- 20080702 :       For failure to successfully complete a Physical Fitness Test (PFT) . On 20080630, you failed to complete the run portion of the PFT, resulting in a failure.


- 20090303 :       For failure to maintain satisfactory physical condition, specifically, on 20090303 you failed the Marine Corps PFT , which was conducted by the squadron. This PFT was not for score. This test was conducted by the squadron in attempt to give you the opportunity to achieve a passing score due to your Physical Fitness failure on 20080820 at your last command. I am advised that I have been on the command Remedial Physical Conditioning Program for approximately 90 days , and I have failed to make any progress. I also demonstrated poor judgment and a lack of initiative by walking during the 3 mile run.

- 20091120 :       For your recent violations of the UCMJ. You were reduced to LCPL on 20090619 by a Competency Review Board for unsatisfactory performance on your physical fitness. On 20090806, you were subject to an administrative separation based on U nsatisfactory P erformance, with a G eneral ( U nder H onorable C onditions) characterization of service. The sentence was suspended for a period of twelve months. While deployed to Iraq you received nonjudicial punishment on 20090805 and 20091116 for multiple violations of Article 86. Your continuous pattern of misconduct is inexcusable and will not be tolerated.

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 6206, UNSATISFACTORY PERFORMANCE , 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 contends his discharge was based on poor performance on a P hysical Fitness Test (P FT ) that was a result of an injury.
2 .       The Applicant contends he was treated unfairly and pressured into signing his Acknowledgment of Rights with the threat of an Other Than Honorable Conditions discharge .
 3.       The Applicant contends he earned an Honorable discharge and was only 37 days before the end of his five year enlistment , and if he had signed a four year contract , he would have been discharged h onorably.

Decision

 Date: 20130124            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 for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 3 specifications). Based on the Applicant ’s unsatisfactory performance , 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 and submit a written statement . The Applicant was reduced to Lance Corporal on 15 June 2009 for his lack of professional competence determined by a Competency Review Board. On 05 August 2009, the Applicant was separated by reason of Unsatisfactory Performance with a characterization of General (Under Honorable Conditions) . However, the execution of separation was suspended for twelve months but vacated on 20 September 2010.

: (Decisional) ( ) . The Applicant contends his discharge was based on poor performance on a PFT that was a result of an injury. There is no evidence in the record that the Applicant was medically unqualified to perform his PFTs or was on limited duty while he ran his PFTs that he failed. The Applicant was counseled on multiple occasions for his PFT failures , and it was determined that he lacked professional competence by a Competency Review Board . Further, the Applicant was given a second chance to correct his performance by having his separation suspended for twelve months. During this suspension period, the Applicant not only failed to show improvement on his PFTs , but he was found guilty at two NJPs for being in violation of U CMJ Article (Absence without leave, 3 specifications) . The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Finally, it is not unusual for Marines to be separated solely for PFT deficiencies. Relief denied .

: (Decisional) ( ) . The Applicant contends he was treated unfairly and pressured into signing his Acknowledgment of Rights with the threat of an Other Than Honorable Conditions discharge . 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 that he was wrongfully pressured into signing his Acknowledgment of Rights . The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Rather, the record reveals that his command went to extra lengths to accommodate the Applicant and gave him multiple opportunities to correct his unsatisfactory performance, including suspending a discharge for twelve months. Further, his command could have separated the Applicant Under Other Than Honorable Conditions due to a Pattern of Misconduct yet decided to pursue the more lenient General (Under Honorable Conditions) characterization for Unsatisfactory Performance. Despite being given multiple opportunities, the Applicant failed to correct his poor behavior. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and more than equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends he earned an Honorable discharge and was only 37 days before the end of his five year enlistment , and if he had signed a four year contract , he would have been discharged h onorably. C haracterization of the current enlistment or period of service is determined by conduct, actions, or performance during that enlistment or service plus any extensions prescribed by law or regulations or effected w ith the consent of the member. The Applicant signed a five year contract that he was unable to complete due to his unsatisfactory performance. In addition, the Applicant had significant misconduct during his enlistment demonstrated by his two NJPs. Further, if the Applicant was allowed to complete his active service, he would have still received a General (Under Honorable Conditions) characterization based on his P roficiency and C onduct marks. I n accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, c haracterization should be G eneral for Marines with average P roficiency marks below 3.0 and average C onduct marks below 4.0. The S eparation A uthority may determine a fully honorable characterization of service is warranted, however, this discretion should only be used if the Marine’s service is otherwise so meritorious that any other characterization would clearly be inappropriate. The Applicant ’s overall marks for P roficiency and C onduct were 3.8 and 3.6 over 13 reporting periods, demonstrating below average Performance and Conduct. T he NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service. 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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