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USMC | DRB | 2012_Marine | MD1200797
Original file (MD1200797.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120301
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)       20061102 - 20070522     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070523     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100423      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 40
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of CONF :

NJP:

- 20090629 :       Article (Absence without leave, 0715-0750, 20090320 from morning formation)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20091216 :      Article (Absence without leave, 3 specifications )
         Specification 1: 0630 formation, did not report until 0745, 20091203
         Specification 2: 0500 formation, did not report until 0630, 20091204
         Specification 3: 0630 formation, did not report until 0730, 20091208
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20 1 0 0208 :      Article ( False official statement)
         Article ( Larceny, wrongful appropriation , 3 specifications )
         Specification 1: Stole 4 HMMWV tires on 20100603, property of the government
         Specification 2: Stole 8 gas cans with fuel at an unknown date, property of the government
         Specification 3: Wrongfully appropriated 4 HMMWV tires on 20100721, property of the government
         Awarded: Suspended:

SCM:     SPCM:    CC:






Retention Warning Counseling :

- 20080205 :       For violation of A rticle 92 of the UCMJ, 20081208, failure to obey s ergeant’s order not to go to chow after you already eaten; A rticle 92, 20081211 you arrived to work in the improper uniform of the day after being counseled on the subject ; A rticle 86, 20081223 you were not present for a 0700 formation ; and A rticle 86, 20081229 from 0630 to 0745 you were absent from a working party you were assigned to go to by the Company Gunnery Sergeant

- 20090629 :       For violation of A rticles 86 and 92 of the UCMJ that resulted in my NJP on 20090629

- 20091026 :       For violation of A rticle 92. On or about 20090916 in FC barracks 507 rm 406 (2) 40mm rounds were found in your belongings

- 20091217 :       For your recent NJP of 20091217 for violation of A rticles 86 (3 specifications) and 92 of the UCMJ

- 20100225 :       For violation of A rticle s 107 and 121 (3 specifications) of the UCMJ

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 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 contends he was discharged for breaking restriction. He also contends he was discharge d after three years of honorable service and that prior to this one incident he had no major instances of discipline action for any major offenses .
2 .       The Applicant contends he was singled out for discharge, was not allowed to finish his enlistment, and others with similar or worse misconduct were allowed to remain in the Marine Corps.
 3.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

 Date : 20 1 3 0129            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 and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 4 specific ation s), Article 92 (Failure to obey order or regulation , 2 specifications ), Article 107 ( False official statement ), and Article 121 ( Larceny , 3 specific ation s ) . Based on the offenses committed by the Applicant, command administratively processed for separation . When notified of a dministrative separation processing using the procedure, the Applicant exercised his right to consult with a qualified counsel but waived rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends he was discharged for breaking restriction. He also contends he was discharge d after three years of honorable service and that prior to this one incident he had no major instances of discipline action for any major offenses . The Applicant was not discharged solely for breaking restriction. Rather, the Applicant was discharged after establishing a pattern of misconduct as defined in the Marine Corps Separation and Retirement Manual with his three NJPs and five retention warnings during his 2 years and 11 months of service. The three NJPs were for a variety of UCMJ violations, including violating Articles 92, 107, and 121, all of which are considered serious offenses per Appendix 12 of the Manual for Courts-Martial and warranted a punitive discharge (i.e., Bad Conduct or Dishonorable) as the result of a Special or General Court-Martial. His command, however, did not refer charges to a court-martial but gave the Applicant multiple opportunities to correct his poor behavior. Despite being given multiple opportunities, the Applicant continued to commit misconduct and performed poorly as a Marine as evidenced by his below-average Proficiency and Conduct marks of 3.9/3.9 during his enlistment. The letter provided by the Applicant from a former Marine to explain the incident with the HMMWV tires does not change the guilty finding at NJP for violating UCMJ Article 121 (Larceny). The Applicant met the requirements for administrative separation processing for Misconduct (Pattern of Misconduct) and Misconduct (Commission of a Serious Offense). The NDRB determined his discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends he was singled out for discharge, was not allowed to finish his enlistment, and others with similar or worse misconduct were allowed to remain in the Marine Corps. The 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, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed multiple serious

offenses, that separation from the Naval Service was appropriate for a Pattern of Misconduct and Commission of a Serious Offense , and that a n Under Other Than Honorable Conditions discharge was warranted. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.
Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB considers 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. The Applicant provided a personal statement and two letters of character reference. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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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