Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1200979
Original file (MD1200979.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120327
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)       20070828 - 20070905     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070906     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110826      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 21 D a y ( s )
Education Level:        AFQT: 53
MOS: 6324
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20101222 :       Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20110509 :      Article (Failure to obey order or regulation)
         Article (Drunken or reckless operation of vehicle, aircraft, or vessel - BAC .13)
         Awarded: Suspended:

SCM:     SPCM:    CC:

CIVIL ARREST:

- NFIR :   Charges: DUI

Retention Warning Counseling :

- 20101222 :       For failure to obey a lawful order. Specifically, by failing to be at appointed place of duty after being ordered to be present, an order of which you had knowledge.








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 his discharge is inequitable , since his two incidents of misconduct are not similar.
2.       The Applicant contends he is innocent of the violation he was found guilty of at his first Nonjudicial Punishment ( NJP ) .
3.       The Applicant contends another Marine was allowed to complete his contract who had more NJPs than he did.
4.       The Applicant contends his administrative separation 10 days prior to his E nd of Active Service (E AS ) was too severe.
5.       The Applicant contends he was rushed and did not know what he was signing when they gave him his administrative separation paperwork.

Decision

 Date: 20130205            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 warning and for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation , 2 speci f ications ) and Article (Drunken or reckless operation of vehicle, aircraft, or vessel - BAC .13). The Applicant also had a civil arrest for DUI. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the administrative board procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement, but di d exercise his right to request an administrative board . The administrative board voted 3-0 t hat the preponderance of evidence supported the Applicant had a pattern of misconduct and recommended he be separated Under Other Than Honorable Conditions. The s quadron and g roup commanding officers concurred with the administrative board’s recommend ation for a characterization Under Other Than Honorable Conditions . The Separation Authority ( Commanding General, 2D Marine Aircraft Wing ), however, ordered the Applicant to be separated with a characterization of General (Under Honorable Conditions).

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , since his two incidents of misconduct are not similar. Per Marine Corps Separation and Retirement Manual paragraph 6210.3, a minimum of two incidents occurring within one enlistment is required to be separated with a pattern of misconduct , and the incidents of misconduct do not have to be of the same nature. With two NJPs and a retention warning during his enlistment, t he NDRB determined the Applicant’s contention is without merit. Relief denied.
: (Decisional) ( ) . The Applicant contends he is innocent of the violation he was found guilty of at his first NJP. The record of evidence clearly shows the Applicant waived his rights to trial. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. The Applicant had an administrative separation board where he had the opportunity to mount a defense against the charges of pattern of misconduct. The administrative separation board voted 3-0 that the preponderance of evidence supported the Applicant had a pattern of misconduct. The Applicant submitted no evidence to support his contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.

: (Decisional) ( ) . The Applicant contends another Marine was allowed to complete his contract who had more NJPs than he did. 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 had a pattern of misconduct, that separation from the Marine Corps was appropriate, and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.
4: (Decisional) ( ) . The Applicant contends his administrative separation 10 days prior to his EAS was too severe. Administrative discharge processing is administrative in nature and not considered a form of punishment. The Applicant had one 6105 counseling warning and NJPs during his enlistment and met the requirements for separation due to a pattern of misconduct. Further, the Applicant had an administrative board who found that the preponderance of evidence supported the Applicant ’s pattern of misconduct and administrative separation Under Other Than Honorable Conditions. The NDRB discerned no impropriety or inequity in the Applicant’s discharge. Relief denied.

5 : (Decisional) ( ) . The Applicant contends he was rushed and did not know what he was signing when they gave him his administrative separation paperwork. If the Applicant felt he was rushed, he should have asked for more time. By signing his name to the documentation, he acknowledged its contents. Despite being rushed, he did have the presence of mind to ask for an administrative separation board, however. The NDRB determined this issue does not warrant an upgrade nor does it change the propriety and equity of his discharge. 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

Similar Decisions

  • USMC | DRB | 2013_Marine | MD1300936

    Original file (MD1300936.rtf) Auto-classification: Denied

    The Applicant contends his post-service conduct warrants an upgrade. 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. ” Additional...

  • USMC | DRB | 2012_Marine | MD1200657

    Original file (MD1200657.rtf) Auto-classification: Denied

    The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2013_Navy | ND1300997

    Original file (ND1300997.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2012_Marine | MD1201274

    Original file (MD1201274.rtf) Auto-classification: Denied

    The administrative board voted 3-0 that the preponderance of the evidence supported the Applicant had a pattern of misconduct and recommended separation with a characterization Under Other Than Honorable Conditions. ” 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. Additionally, the NDRB has no authority to...

  • NAVY | DRB | 2015_Navy | ND1401730

    Original file (ND1401730.rtf) Auto-classification: Denied

    Based on the offense(s) committed by the Applicant, command administratively processed for separation. 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 remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE). ” Additional Reviews : After a document...

  • USMC | DRB | 2014_Marine | MD1400983

    Original file (MD1400983.rtf) Auto-classification: Denied

    The NDRB found the Applicant’s contention to be without merit and determined that his separation for his misconduct was appropriate. 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...

  • USMC | DRB | 2013_Marine | MD1300568

    Original file (MD1300568.rtf) Auto-classification: Denied

    The Applicant contends her post-service conduct warrants an upgrade. The Separation Authority did not suspend the separation and separated the Applicant Under Other Than Honorable Conditions for Misconduct (Drug Abuse). ” 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.

  • NAVY | DRB | 2011_Navy | ND1100524

    Original file (ND1100524.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. ” 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted...

  • USMC | DRB | 2014_Marine | MD1400868

    Original file (MD1400868.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Reenlistment/RE-code : Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other...

  • USMC | DRB | 2011_Marine | MD1100561

    Original file (MD1100561.rtf) Auto-classification: Approved

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...