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USMC | DRB | 2012_Marine | MD1201071
Original file (MD1201071.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120411
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)       20070816 - 20071014     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20071015     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20101229      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 57
MOS: 0111
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle LOA

Periods of UA : 20100730 - 20100808, 10 days / CONF :

NJP:
- 20081229 :      Article (Larceny and wrongful appropriation - Wrongfully stole shoes from Navy Exchange, Norfolk, Virginia)
         Awarded: Suspended:

- 20100826 :      Article (Absence without leave, 20100715 - 20100719, 4 days , in jail )
         Article (Failure to obey order or regulation - Wrongfully wearing an earring)
         Article (False official statements - that he had a medical appointment in Bethesda, MD, or words to that effect, which statement was totally false, and was then known to be false)
          Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:
- 20081212 :      For UA or failure to be at your appointed place of duty numerous times and misused government mail. As of 20081118 you were UA from Battalion PT and arrived late at work at 0845, on 20081124 you misused Official Government Mail by mailing an unauthorized FEDEX package for your personal use, on 20081209 you arrived late to work at 0740 and on 20081211 you arrived late to work at 0754.

- 20081229 :      For violation of UCMJ Article 121.

- 20090728 :       For violation of Article 86 on or about 20090529 the DNCO temporarily relieved you from your post as Saratoga Hall barracks ADNCO and permitted you to get some rest. He gave you a verbal order to return at 0300 but you did not return until 0415 and that was only after the DNCO placed numerous phone calls to your personal cell phone, the first of which you did not answer. Additionally and without approval from your DNCO, you left the barracks to go to your off base residence to sleep thereby effectively taking it upon yourself to abandon your appointed place of duty.

- 20100608 :      For failure of 1 st semi-annual PFT conducted on 20100525.

- 20100826 :      For NJP of 20100826.

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 seeks an upgrade to qualify for education benefits.
2.       The Applicant contends his misconduct was due to the unfair treatment he received from his command concerning their i nability to keep his personal information private.

Decision

 Date: 20 1 3 0213            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 standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( Absence without leave, 1 specification) , Article 92 ( Failure to obey order or regulation, 1 specification) , Article 107 (False official statement, 1 specification) , and Article 121 ( Larceny, 1 specification). Based on the offenses 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 and request an administrative board , but waived the submission of a written statement . The administrative board voted 3-0 that the preponderance of the evidence proved all facts and omissions and voted 3-0 to recommend the Applicant be separated with a General (Under Honorable Conditions) characterization of service with no suspension. The Separation Authority concurred and ordered the Applicant to be discharged.

: (Nondecisional) T he Applicant seeks an upgrade to qualify for education 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 re-characterization 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. Furthermore, t he 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.

: (Decisional) ( ) . The Applicant contends his misconduct was due to the unfair treatment he received from his command concerning their inability to keep his personal information private. The Applicant contends command impropriety led to a violation of his personal medical information privacy rights, the Applicant’s subsequent embarrassment, and ultimately his misconduct when he lied about a medical appointment. The NDRB is not an investigative body and allegations of legal impropriety should be made to the Marine Corps Inspector General’s Office. Allegations notwithstanding, the Board conducted a detailed examination of the Applicant’s record of service to determine whether his discharge met the pertinent standards of propriety and equity. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly. The Applicant’s service included five retention warnings and two nonjudicial punishments for violations of UCMJ Articles 86, 92, 107, and 121. Only one of these violations was for lying about his medical appointment. Violations of Article s 92, 107, and 121are considered serious offenses for which a punitive discharge (i.e., Bad Conduct or Dishonorable) is authorized as the result of a Special or General Court-Martial . However, his command opted for the more lenient administrative discharge. After a complete review of the Applicant’s records and after reading his statement, the NDRB determined his discharge was proper and very equitable. 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 T herefore, 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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