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USMC | DRB | 2012_Marine | MD1200934
Original file (MD1200934.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120320
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)       20070810 - 20070819     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070820     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110614      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 22 D a y ( s )
Education Level:        AFQT: 73
MOS: 4341
Proficiency/Conduct M arks (# of occasions): /   Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoC (Individual Award) LoA

Periods of CONF :

NJP:

- 20090423 :       Article (Failure to obey order or regulation, 3 specifications )
         Specification 1: Consuming alcohol while under the legal age of 21
         Specification 2: Driving on base with a suspended driver’s license
         Specification 3: Disobey an order not to drive on or off base with suspended driver’s license
         Article (General A rticle, f alse or unauthorized pass offense, alter ed military ID card )
         Awarded: Suspended:

- 20101019 :      Article (Absence without leave 0730-0859, 20101014)
         Awarded: Suspended:

- 20110302 :       Article (Absence without leave)
          Article 92 (Failure to obey order or regulation, plagiarizing a story from a web site given to you by your NCO as a reference)
         Awarded: Suspended: (RESTR EPD) Vacated 20110321

- 20110509 :      Article (General A rticle, 2 specifications )
         Specification 1: Disorderly conduct, drunkenness
         Specification 2: Breaking Restriction
         Awarded: Suspended:

SCM:     SPCM:    CC:

CIVIL ARREST:

- 20110308 :       Charges: Fighting in public place, obstruction by resisting arrest

Retention Warning Counseling :

- 20081113 :       For violation of Article 108, Damage to Military Property. On or about 20081028 , you were involved in a motor vehicle accident onboard Marine Corps Air Station Beaufort. This is the third motor vehicle accident you have been involved in, due to lack of attention and responsibility behind the wheel.

- 20090423 :       For violation of Article 92 x3, Failure to obey order or regulation, violation of Article 134, General Article (False or unauthorized pass offenses). On or about 20090220, you disobeyed a lawful order, MCO 1700 22E, which states you are not to possess or consume alcoholic beverages while under the legal age of 21. Failure to obey order or regulation specifically ASO P5110 1F by driving on base with a suspended driver’s license on 20090418. On or about 20090417 , you disobeyed a lawful order by GySgt M_ to not drive on or off base while having a suspended license. Further investigation revealed that you were in possession of an altered military identification card, in which you changed your year of birth to reflect 1980 instead of 19 89, with intent to defraud.

- 20101021 :       For your NJP for violation of Article 86. On 20101014 , you were over an hour late for work and were found to be sleeping in your rack.

- 20110302 :       For Article 92, Failure to obey order or regulations. On or about 20110201, you plagiarized the Savannah Irish Festival story from a web site given to you as a reference, Article 86, Unauthorized absence, on 20010210 , you failed to show up to your scheduled TAPS class at 0800 at Afterburners. You spent two hours trying to get your car started and did not notify anyone in your chain of command. This caused you to be absent from your appointed place of duty from 0800-1000.

- 20110509 :       For Article 134, Disorderly conduct and drunkenness. On or about 20110308 , you were arrested for fighting in a public place and obstruction by resisting arrest at Sweet Melissa’s Pizza in Savannah, Georgia, Article 134, Restriction b reaking. On 20110412 you admitted to the OOD that you were staying in a regular barracks room while on restriction and a half empty bottle of alcohol was found in your room , which is a violation o f your terms of restriction.

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 :        







DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant seeks an upgrade for educational opportunities.
2 .       The Applicant contends his discharge was unjust , because it was based on the last three to five months of being at the installation and he had previously served honorably and earned medals, including a Good Conduct Medal .
 3 .       The Applicant faults youth and immaturity for his misconduct.

Decision

Date: 20 1 3 0 221            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 (Absence without leave , 2 specifications), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 134 ( General A r ticle, 2 specific ation s) , and a civilian arrest for fighting in public and resisting arrest . Although it was not clear from his records, his command preferred charges to a Special Court-Martial. The Applicant, however, requested separation in lieu of trial by court-martial (SILT). To obtain approval for a SILT, a service member must confirm , in writing, his complete understanding of the elements of the offenses charged against him , he must admit guilt to the offenses, and he must acknowledg e the negative consequences of his actions and that characterization of service could be Under Other Than Honorable Conditions. The Marine Corps approved his request and separated him Under Other Than Honorable Conditions In Lieu of Trial by Court-Martial.

: (Nondecisional) The Applicant seeks an upgrade for 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.

: ( D ecisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge was unjust, because it was based on the last three to five months of being at the installation and he had previously served honorably and earned medals, including a Good Conduct Medal. During the Applicant’s 3 years and 10 months of service, he received five retention warnings, was arrested by civilian authorities, and was found guilty of numerous UCMJ violations at four NJPs. Although his DD Form 214 lists an awarding of a Good Conduct Medal, his record of misconduct shows that he did not rate the medal. To be awarded a Good Conduct Medal, a service member must serve for three consecutive years without misconduct. The Applicant’s first NJP occurred after 1 year and 8 months of service. The NDRB, however, is not authorized to rescind medals and so will take no action with respect to the Awards block on his DD Form 214. Despite continued misconduct, his command allowed the Applicant to continue to serve. Although unclear from his records, his command eventually referred charges to a Special Court-Martial. The Applicant requested separation in lieu of trial by court-martial, and the Marine Corps agreed to this request. Since t he Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

: (Decisional) ( ) . The Applicant faults youth and immaturity for his misconduct. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. 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.

Pertinent Regulation/Law

 A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

 C . 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 .


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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