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USMC | DRB | 2012_Marine | MD1201019

Original file (MD1201019.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)       20020928 - 20021118     Active:          20021119 - 20070820

Period of Service Under Review:
Date of Current Enlistment: 20070821     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20101223      H ighest Rank:
Length of Service : Y ea rs M on ths 03 D a ys
Education Level:        AFQT: 53
MOS: 1391
Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol MM (3) KDSM JMUA CoA CoC

Periods of CONF :

NJP:

- 20080514 :      Details NFIR [Extracted from Marine Corps Total Force System]

- 20091218 :      Article (Failure to obey order or regulation - o n or about 20091208 SNM violated MCOP1020.34G Chapter 1-5, by having a tongue piercing)
         Awarded: Suspended:

SCM:

- 20100317 :       Art icle (Failure to obey order or regulation - refused physical examination on 20100305 at Chemical Biological Incident Response Force, Indian Head, MD)
         Art icle (False official statements - on 20100205 at Chemical Biological Incident Response Force, Indian Head, MD)
         Sentence :

SPCM: CC:

Retention Warning Counseling :

- 20090508 : For assignment to the Marine Corps B ody Composition Program

- 20090905 :       For four - month assignment to the Marine Corps BCP

- 20090908 :       For unsatisfactory performance while assigned to the Marine Corps BCP. Due to insufficient effort, you have not met your weight/body composition reduction goals

- 20091108 :       For your failure to comply with established weight/body composition standards while assigned to the Marine Corps BCP

- 20100120 :       For A rticle 86 for failure to be at your appointed place of duty; DNCO Barra c ks 902 on 20091226, failed to set the example of a United States Marine

- 20100421 :       For violation of A rticle 134 of the UCMJ in that you wore a certain decoration or device upon your service uniform that you were not authorized to wear. On 20100421, you admitted to willfully wearing the Combat Action Ribbon on your Dress Blue “A” uniform to the Marine Corps Ball ceremony

- 20100421 :       For violation of A rticle 134 of the UCMJ in that you impersonated a non-commissioned officer. On 20100419, you willfully impersonated a non-commissioned officer by placing Sgt chevrons upon the collar of your uniform at the National Naval Medical Center Bethesda

Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:


         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 021119 UNTIL 070820 ”
         “ ”

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 request a review of his record and correction of his DD Form 214 to reflect his correct name, rank, awards , and narrative reason for separation.

Decision

Date: 20 1 3 0301 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. 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): 14 May 2008 Article details N ot Found in Record [Extracted from Marine Corps Total Force System] and Article (Failure to obey order or regulation - on or about 20091208 SNM violated MCOP1020.34G Chapter 1-5, by having a tongue piercing) , and for of the UCMJ: Article (Failure to obey order or regulation - refused physical examination on 20100305 at Chemical Biological Incident Response Force, Indian Head, MD) and Article (False official statements - on 20100205 at Chemical Biological Incident Response Force, Indian Head, MD) . Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel but waived his rights to submit a written statement and request an administrative board .

: (Nondecisional) The Applicant request a review of his record and correction of his DD Form 214 to reflect his correct name, rank, awards, and narrative reason for separation. In reviewing discharges, the NDRB may identify administrative errors on the Applicant’s DD Form 214 that fall within the scope of the NDRB’s responsibility to examine the propriety and equity of a discharge. If errors are identified, the NDRB will make recommendations to Headquarters Marine Corps for correction. However, the NDRB can only make recommendations for administrative corrections and has no ability to track or verify whether change recommendations are completed. It is the responsibility of the former service member to follow up with the applicable service to ensure changes are incorporated into the record. The NDRB will recommend the following administrative changes to the DD Form 214: Correct the spelling of his middle name to “Allen” (Block 1), add a statement to Block 18 that reflects his previous Honorable enlistment, and correct the Character of Service (Block 24) to “Under Other Than Honorable Conditions” to be in accordance with the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) .

As to the propriety and equity of the discharge, in his second enlistment, the Applicant had seven retention warnings and was found guilty of multiple UCMJ offenses at two NJPs and a Summary Court-Martial. This frequent misconduct met the requirements for a Pattern of Misconduct per paragraph 6210.3 of the MARCORSEPMAN. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The NDRB determined his characterization Under Other Than Honorable Conditions was equitable.

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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USMC | DRB | 2012_Marine | MD1201019

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