Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1201129
Original file (MD1201129.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120419
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)       20070609 - 20070624     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070625     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110614      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 81
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF :

Time Lost (per DD 214): 20100721-20100727, 7 days

NJP:

- 20090611 :       Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation - underage drinking)
         Article 134 (General A rticle - disorderly conduct, drunkenness)
         Awarded: Suspended: 1 MONTH

- 20101202 :      Article (Larceny , stole U.S. currency of value of about $50.00 )
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090611 :       For violation of Article s 91, 92, and 134, reference NJP dated 20090611.

- 20101202 :       For violation of Article 121 , Larceny , reference NJP dated 20101202 .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ (7) 20100721-20100727 ”

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 based on two minor incidents that were one year and five months apart.
2.       The App licant contends his discharge is inequitable , because the sentence awarded at his second nonjudicial punishment ( NJP ) was punishment enough.
3 .       The Applicant contends financial hardship was a mitigating factor in his second instance of misconduct.
 4 .       The App licant contends he served more honorably than some Marines who received Honorable discharges.
 5 .       The App licant contends he should have been medically discharged before his second NJP .
 6.       The Applicant contends his post-service conduct is worthy of consideration for an upgrade.
         
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 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 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ), Article 92 ( Failure to obey order or regulation, underage drinking ), Article 134 ( General A rticle, disorderly conduct, drunkenness ) , and Article 121 (Larceny , stole U.S. currency of value of about $50.00 ). 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 his r ights to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends his discharge was based on two minor incidents that were one year and five months apart. Per paragraph 6210.3 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) , to be eligible for administrative separation processing for Misconduct (Pattern of Misconduct), a minimum of two incidents occurring within one enlistment is required. The infractions may be minor or more serious. The misconduct need not have been the subject of NJP or military or civilian conviction. The incidents of misconduct do not have to be of the same nature. Separation processing may not be initiated until the Marine has been counseled per paragraph 6105. During the Applicant’s almost four years of service, he received two 6105 retention warnings and was found guilty of committing several serious offenses at two NJPs. Per Appendix 12 of the Manual for Courts-Martial, violation of UCMJ Articles 91, 92, and 121 are considered serious offenses because they could have resulted in a punitive discharge (i.e., Bad Conduct or Dishonorable) as the result of a Special or General Court-Martial. His command, however, adjudicated the offenses at NJP and allowed the Applicant to continue his service. Per the MARCORSEPMAN, the Applicant met the requirements for administrative separation for Misconduct (Pattern of Misconduct) and Misconduct (Commission of a Serious Offense). The Separation Authority determined that a Pattern of Misconduct was the primary basis for separation and ordered the Applicant to be discharged Under Other Than Honorable Conditions. After a thorough review of the records, the NDRB determined the discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable, because the sentence awarded at his second NJP was punishment enough. Before adjudicating the charge of larceny at his second NJP, the Applicant’s command referred the larceny charge to a Special Court-Martial. However, per a pre-trial agreement signed by the Applicant and the Marine Corps, the Applicant agreed to plead guilty at NJP to stealing $50 from a vehicle that he was searching as part of his duties and waive his right to an administrative separation board in exchange for the Marine Corps

dropping the referral of the larceny charge to a Special Court-Martial. The Applicant was then found guilty at NJP of larceny and was appropriately punished. Subsequent to his second NJP, his command notified of administrative separation processing for a Pattern of Misconduct. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment. Based upon the frequency and severity of the misconduct, the NDRB found no impropriet y in the discharge and determined the Applicant’s discharge characterization was equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends financial hardship was a mitigating factor in his second instance of misconduct. The Applicant stole money from a vehicle that he was inspecting as part of his duties as a Military Policeman. While the Applicant may feel that his financial difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. He was extremely fortunate that his command did not press forward with a Special Court-Martial, as he would have undoubtedly received a Bad Conduct Discharge for this misconduct. Relief denied.

4: (Decisional) ( ) . The Applicant contends he served more honorably than some Marines who received Honorable discharges. 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. Former Marines have been discharged Under Other Than Honorable Conditions for much less misconduct than that committed by the Applicant. The NDRB determined he warranted separation Under Other Than Honorable Conditions for a Pattern of Misconduct. Relief denied.

5: (Decisional) ( ) . The Applicant contends he should have been medically discharged before his second NJP. Department of Defense regulations provide that disciplinary separations supersede disability separations. 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 memb er’s terminated health record. The NDRB determined his misconduct was not mitigated by his physical conditions. Relief denied.

Issue 6 : (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct is worthy of consideration for an upgrade. The NDRB considers 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. The Applicant provided a personal statement, evidence of employment , college attendance, and making the Dean’s List, and three character reference letters . The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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

  • NAVY | DRB | 2012_Navy | ND1201250

    Original file (ND1201250.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks to have his RE-code changed.2. ” 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining...

  • USMC | DRB | 2015_Marine | MD1401595

    Original file (MD1401595.rtf) Auto-classification: Denied

    DEPARTMENTOFTHE NAVYNAVALDISCHARGEREVIEWBOARD(NDRB) DISCHARGEREVIEWDECISIONALDOCUMENTAPPLICANT'SISSUESI.TheApplicantcontendsthathe signedpaperworkthatstatedhewouldreceiveaGeneral,UnderHonorableConditions dischargeifhesuccessfullycompletedhisrestriction.DECISIONDate: 20141204 DOCUMENTARY REVIEW Location:WASHINGTOND.C. Representation:NONE Byavoteof5-0theCharacterizationshall remainUNDEROTHERTHANHONORABLECONDITIONS.Byavoteof5-0theNarrativeReason shallremain...

  • USMC | DRB | 2012_Marine | MD1201065

    Original file (MD1201065.rtf) Auto-classification: Denied

    Although she was administratively processed for separation with the possibility of receiving an Under Other Than Honorable Conditions characterization of service, her commanding officer recommended she receive a General 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...

  • USMC | DRB | 2014_Marine | MD1400554

    Original file (MD1400554.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20070316 - 20070321Active: Period of Service Under Review: Date of Current Enlistment: 20070322Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20110717Highest Rank:Length of Service: Year(s)Month(s)26 Day(s)Education Level: AFQT:52MOS: 6672Proficiency/Conduct Marks (# of occasions):/Fitness Reports: Awards and Decorations (per DD 214):Rifle...

  • NAVY | DRB | 2009_Navy | ND0900305

    Original file (ND0900305.rtf) Auto-classification: Denied

    Should the Applicant feel at some later time his post-service conduct is worthy of personally presenting to the NDRB there are organizations, such as the American Legion, Disabled American Veterans, etc., willing to provide guidance and assistance in preparing such a presentation.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for...

  • USMC | DRB | 2015_Marine | MD1401397

    Original file (MD1401397.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review...

  • USMC | DRB | 2013_Marine | MD1300807

    Original file (MD1300807.rtf) Auto-classification: Denied

    Clemency 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 Reviews : After a document review has been conducted, former members...

  • USMC | DRB | 2009_Marine | MD0900922

    Original file (MD0900922.rtf) Auto-classification: Denied

    On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate or relate directly to your issues in Item 6.” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, when the DD Form 293 is received, the Applicant is mailed the NDRB’s Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the...

  • USMC | DRB | 2015_Marine | MD1500651

    Original file (MD1500651.rtf) Auto-classification: Denied

    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...

  • NAVY | DRB | 2013_Navy | ND1300219

    Original file (ND1300219.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade to enhance career opportunities and to reenlist into the Armed Forces.2. Based on the civil conviction, command administratively processed for separation. ” 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...