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USMC | DRB | 2012_Marine | MD1201039
Original file (MD1201039.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120406
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)       20050929 - 20060508     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060509     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20100519      H ighest Rank:
Length of Service : Y ea rs M on th 11 D a ys
Education Level:        AFQT: 40
MOS: 3521
Proficiency/Conduct M arks (# of occasions): /          Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) ( 2 )

Periods of CONF :

NJP:

- 20090213 :       Article (Absence without leave, 20090130-20090131, 1 day)
         Article (Fail ure to obey order or regulation, 2 specifications )
         Specification 1: Willfully and wrongfully disobeying by leaving Camp Schwab and not returning at the prescribed time for red card holders
         Specification 2: Failed to log out of the liberty log book
         Awarded: Suspended:

- 20090828 :      Ar ticle 86 (Absence without leave, 3 specifications )
         Specification 1: 0730-0800, 20090809
         Specification 2: 0600-0700, 20090810
         Specification 3: 0600-0615, 20090811
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded: Suspended:

- 20091117 :       Article (Absence without leave , 0600, 20090918 - 0800 , 20090921, 3 days)
         Awarded: Suspended:

- 20100204 :      Article (Absence without leave , 20091002-20091113, 42 days)
         Awarded: Suspended: 20 days

SCM:             SPCM:            CC:




Retention Warning Counseling :

- 20070508 :       For your failure to maintain proper grooming standards on 20070407. You also abandoned your post, disobeyed a lawful order by an NCO, fell asleep on post, and failed to resume your post when ordered to do so on 20070412. These are violations of Article s 86, 91, 92 , 113 , and 134 of the UCMJ. You also displayed a generally poor attitude by failing to wear your insignia of grade and going unshaven on several occasions. These actions over time establish a pattern of misconduct and disregard for rules, regulations , and orders governing good order and discipline in the Armed Forces. This type of behavior serves only to erode our core values as Marines and will not be tolerated.

- 20090831 :       For my recent NJP for violations of Articles 92 and 86 of the UCMJ held on 20090828.

Administrative Corrections to the Applicant’s DD 214

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

          “ ”
         “ (1) 20090130; (3) 20090918-20090920;
(42) 20091002-20091112 ”

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 his discharge was improper and inequitable , because he was separated one month before reaching his E nd of A ctive Obligated S ervice (EAOS) .
2.       The Applicant contends he was unfairly treated by his chain of command , because he was taken to nonjudicial punishment ( NJP ) and placed in the brig for only being 5 minutes late.

Decision

Date: 20 1 3 0206            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 and for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 6 specifications : [1] 20090130-20090131, 1 day ; [2] 0730-0800, 20090809; [3] 0600-0700, 20090810; [4] 0600-0615, 20090811 ; [5] 0600, 20090918-0800, 20090921, 3 days; [6] 20091002-20091113, 42 days ) , Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) , and Article (Failure to obey order or regulation, 2 specifications ) . Based on the offense s committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . However, the Applicant’s DD Form 214 reflects a separation code of HKA1 , which indicates he waived his right to a separation board.

: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable , because he was separated one month before reaching his EAOS. Additionally, the Applicant feels he was unfairly treated by his chain of command , because he was taken to NJP and placed in the brig for only being 5 minutes late. 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. In fact, the Applicant’s record of service shows that his command was extremely tolerant of his repetitive misbehavior and gave him more chances to correct his poor behavior than what is typically offered to other Marines. Despite being given multiple chances to correct his behavior, the Applicant continued to engage in serious misconduct. Violation of UCMJ Articles 86 ( UA greater than 30 days) , 91, and 92 are consider ed serious offense s per Appendix 12 of the Manual for Courts-Martial and could have resulted in a punitive discharge (i.e., Bad Conduct Discharge) as the result of a Special or General Court-Martial. His command, however, opted to go with the more lenient administrative discharge process. The NDRB found that the Applicant’s command acted lawfully, properly, and very fairly in the treatment of the Applicant. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed multiple s erious offense s , that separation from the Marine Corps was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. 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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