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USMC | DRB | 2012_Marine | MD1201016

Original file (MD1201016.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120404

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)       20040120 - 20040531     Active:          20040601 - 20071120

Period of Service Under Review:
Date of Current Enlistment: 20071121     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100203      H ighest Rank:
Length of Service : Y ea rs M on ths 14 D a ys
Education Level:        AFQT: 58
MOS: 0151
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20090723 :      Article (Absence without leave, 2 specifications)
         Specification 1: On 20090429, you without authority, failed to go at the time prescribed to his appointed place of duty Building 9122, Marine Corps Detachment, Lackland Air Force Base, Texas
         Specification 2: On 20090429, you without authority, failed to go at the time prescribed to his appointed place of duty Building 9122, Marine Corps Detachment, Lackland Air Force Base, Texas
         Article (Failure to obey order or regulation, 3 specifications)
         Specification 1: On 20090626, you failed to obey a lawful general regulation Marine Corps Order P1020.34G Marine Corps Uniform Regulation, dated 20030331, 7b(5) by wrongfully failing to be clean shaven
         Specification 2: On 20090626 you violated a lawful general regulation Marine Corps Detachment policy letter 3-08, Lackland Air Force Base, dated 20080328, by committing an act of fraternization toward LCpl S_, while standing duty as the Staff Duty Officer
         Specification 3: On 20090626 you violated a lawful general regulation Marine Corps Detachment policy letter 3-08, Lackland Air Force Base, dated 20080328 by consuming alcoholic beverages while on duty
         Article 112 (Drunk on duty - you were found drunk while on duty as the Staff Duty Officer, MARCODE Lackland Air Force Base
         Awarded: Suspended: (vacated 20090826)

- 20091008 :       Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: On or about 20090815 , you violated a lawful order issued by the Commanding Officer, M arine Corps Detachment, Lackland Air Force Base, to wit restriction/extra performance of duty orders, dated 20090724 by w rongfully failing to physically check in for restriction at 1300, 1500, 1800, 2000 , and 2145 in B uilding 7358 and sign the muster roster

         Specification 2: On 20090816, you violated a lawful order issued by the Commanding Officer, M arine Corps Detachment, Lackland Air Force Base, to wit restriction/extra performance of duty orders, dated 20090724 by wrongfully failing to physically check in for restriction at 0645 and 0900 in B uilding 7358 and sign the muster roster
         Specification 3: On 20090816, you violated a verbal order given on 20090723 by MSgt C_, by wrongfully failing to abstain from drinking alcoholic beverages while on restriction
         Awarded: Suspended:

SCM:    SPCM:

CC:

- 20090511 :       Offense: Obstruct highway intoxication
         Sentence : $500.00 fine 180 days confinement probation for 2 years

Retention Warning Counseling :

- 20090226 :       For misconduct specifically, violation of Articles 86 and 134 of the UCMJ. On 20090223, I was not at my appointed place of duty. I was verbally counseled on 20090226 for this unauthorized absence status of 23 hours and 30 minutes and for lack of good judgment concerning my return from liberty plan

- 20090728 :       For NJP received on 20090723 for violating UCMJ A rticles 86, 92, and 112

- 20091014 :       For office hours received for the following misconduct of violating a lawful order, restriction/extra performance of duty orders, dated 20090724, by wrongfully failing to physically check in for restriction at 1300, 1500, 1800, 2000, and 2145 in Building 7358 and sign the master roster and again on 20090816, wrongfully failing to physically check in for restriction at 0645 and 0900 and sign the master roster, treated with contempt and was disrespectful in language and deportment to Sgt L_ on 20090816, violated a verbal order given on 20090723 by MSgt C_, by wrongfully failing to abstain from drinking alcoholic beverages while on restriction

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 erroneously reduced in rank at NJP twice and erroneously discharge d and seeks restitution of rank , forfeiture of pay , and allowances .

Decision

Date: 20 1 3 0205 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COMPLETION OF SERVICE .

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 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 : On 200904 18 , you without authority, failed to go at the time prescribed to his appointed place of duty B uilding 9122, Marine Corps Detachment, Lackland Air Force Base, Texas and On 20090429, you without authority, failed to go at the time prescribed to his appointed place of duty B uilding 9122, Marine Corps Detachment, Lackland Air Force Base, Texas ), Article 91 ( Insubordinate conduct toward warrant officer, noncommissionedofficer, or petty officer ), and Article 92 ( Failure to obey order or regulation, 6 specifications : 1) On or about 20090815 you violated a lawful order issued by the Commanding Officer, Marine Corps Detachment, Lackland Air Force Base, to wit restriction/extra performance of duty orders, dated 20090724 by wrongfully failing to physically check in for restriction at 1300, 1500, 1800, 2000 , and 2145 in B uilding 7358 and sign the muster roster ; 2) On 20090816, you violated a lawful order issued by the Commanding Officer, Marine Corps Detachment, Lackland Air Force Base, to wit restriction/extra performance of duty orders, dated 20090724 by wrongfully failing to physically check in for restriction at 0645 and 0900 in B uilding 7358 and sign the muster roster ; 3) On 20090816, you violated a verbal order given on 20090723 by MSgt C_, by wrongfully failing to abstain from drinking alcoholic beverages while on restriction ; 4) On 20090626, you failed to obey a lawful general regulation Marine Corps Order P1020.34G Marine Corps Uniform Regulation, dated 20030331, 7b(5) by wrongfully failing to be clean shaven ; 5) On 20090626 , you violated a lawful general regulation Marine Corps Detachment policy letter 3-08, Lackland Air Force Base, dated 20080328, by committing an act of fraternization toward LCpl S_, while standing duty as the Staff Duty Officer ; 6) On 20090626 , you violated a lawful general regulation Marine Corps Detachment policy letter 3-08, Lackland Air Force Base, dated 20080328 by consuming alcoholic beverages while on duty ) , and Article 112 (Drunk on duty - you were found drunk while on duty as the Staff Duty Officer, MARCODE Lackland Air Force Base ) . When notified of a dministrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends he was erroneously reduced in rank at NJP twice and erroneously discharged and seeks restitution of rank, forfeiture of pay, and allowances. 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. The NDRB does not have the authority to make restitution or reinstatement of any kind. Such matters are a function of the Board for Correction of Naval Records (BCNR). During its review of the Applicant’s case, the NDRB became aware of an 8 May 2012 decision by the BCNR concerning the Applicant’s request for a change in his discharge characterization of service and narrative reason for separation made concurrently with his request for relief from the NDRB. In BCNR Docket No. 12631-11 , the BCNR, after a review of the Applicant’s issues and contentions, determined that relief in the form of changing his characterization of service to Honorable and his narrative reason for separation to Completion of Service was warranted. Therefore, since full relief with respect to what the NDRB is authorized to change has already been granted by the BCNR, the NDRB determined no further action is necessary.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process, and the 8 May 2012 BCNR decision, th e NDRB determined no action was required as full relief with respect to what the NDRB is authorized to change had been granted by the BCNR. The Applicant remains eligible for a personal appearance hearing before the NDRB 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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USMC | DRB | 2012_Marine | MD1201016

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