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USMC | DRB | 2012_Marine | MD1201175
Original file (MD1201175.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120501
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)       20070117 - 20070709     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070710     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110407      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 52
MOS: 0627
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MM LoA

Periods of CONF :

NJP:

- 20080612 :       Article (Failure to obey order or regulation, on 20080522 at 1633 violated II MEF order 5100.19 (Enclosure 4, paragraph 3) by operating a motor vehicle on H wy 70 East enroute to New Bern Airport at a speed of 77 MPH in a 55 MPH zone)
         Awarded: Suspended:

- 20100401 :      Article (Absence without leave, in that SNM did on 20100316 on or about 1545 without authority absence himself from his organization)
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: On 20100316 between the approximate hours of 1500 and 1600 fail to use his chain of command when requesting to leave work early to handle personal issues, when after given a lawful order to use his chain of command in all circumstances. SNM chose not to request permission to get his truck repaired during working hours)
         Specification 2: On 20100316 between the approximate hours of 0700 and 1630, fail to complete all task assigned to him for the day. SNM was given four tasks that he was to complete before close of business. SNM left work at approximately 1545 without completing any of his assigned tasks
         Awarded: Suspended:

- 20101008 :      Article (False official statement, on 20101005 at 1330, state to the Cherry Point PMO Officer that he had left contact information for both himself and his wife on a vehicle that was struck and damaged by his wife while leaving the Cherry Point Naval Medical Clinic. After further questioning, SNM recanted his statement and confessed that SNM later returned to the scene of the accident and removed any and all information that was left on the damage d vehicle . )
        
        

         Article (General A rticle, obstruction of justice, on 20101005, return to the scene of an accident and removed any and all contact information that was left earlier by himself on a vehicle that was stuck and damaged by SNM’s wife while leaving the Cherry Point Naval Medical Clinic)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080612 :       For your conviction of A rticle 92 of the UMCJ at Company level NJP on 2008061 2.

- 20100225 :       For violation of A rticle 86 , specifically, you were absent from Satellite Platoon at 1245 on 20100223, you were told to be at the shop at 1245 and did not show up until 1250 .

- 20100401 :       For your conviction of A rticle 86 and A rticle 92 x2 of the UCMJ at the Company level of NJP on 20100401 .

- 20101008 :       For violation of A rticle 107 ( F alse official statement) and A rt icle 134 (Obstruction of j ustice) in that SNM’s wife struck a vehicle when leaving Cherry Point Naval Clinic and left his contact information. SNM then returned and removed any and all contact information. Following that, SNM told PMO that he had left his wife’s contact information but no such information was found .

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 wants an upgrade to be eligible for Department of Veterans Affairs (VA) benefits.
2.       The Applicant contends he should have been given a medical discharge.
3 .       The Applicant contends he was treated more harshly than other Marines in his command.

Decision

Date : 20 1 3 0221            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 Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation , 3 specifications ), Article 86 ( Absence without leave , 1 specification of less than 24 hours ), Article 107 ( False official statement), and Article 134 (General A rticle, obstruction of justice). 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 waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant wants an upgrade to be eligible for VA benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. The U.S. Department of Veterans Affairs (VA) has announced special access to combat veterans discharged under other than dishonorable conditions. The VA determines the eligibility for enrollment independent of the Applicant’s characterization of service as determined by the Marine Corps. Effective 28 January 2008, combat veterans discharged from active duty on or after 28 January 2003 are eligible for combat-veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for five years after discharge. The Applicant, as a combat veteran, is encouraged to contact the VA for more information at 1-877-222-8387 or http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf

: (Decisional) ( ) . The Applicant contends he should have been given a medical discharge. 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 Under Other Than Honorable Conditions 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 Board for Correction of Naval Records can grant this type of narrative reason change. Also, the NDRB found no evidence in the record, nor did the Applicant provide any evidence, that he was unfairly targeted for separation due to his medical condition. A thorough review of the records reveals that the Applicant was afforded all rights and due process and was properly discharged Under Other Than Honorable Conditions for Misconduct (Pattern of Misconduct). Relief denied.


: (Decisional) ( ) . The Applicant contends he was treated more harshly than other Marines in his command. 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 3 years and 9 months of service, the Applicant received four retention warnings and was found guilty of multiple serious offenses at three NJPs. Despite meeting the requirements for administrative separation processing for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct), his command allowed him to continue to serve. After his last instance of misconduct in October 2010, his command decided to administratively separate him for Misconduct. Additionally, over the course of his enlistment, the Applicant had average Proficiency and Conduct marks of 4.1/3.9, which indicates below-average performance and conduct and would have resulted in a General discharge if the Applicant had finished his enlistment. After a complete review of the records and the Applicant’s statement, the NDRB determined the Applicant committed a pattern of misconduct , that separation from the Marine Corps was appropriate, and that a n Under Other Than Honorable Co nditions 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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