Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1201360
Original file (MD1201360.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120607
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)       20010324 - 2001081 3     Active:  

Period of Service Under Review:
Date of Current Enlistment: 2001081 4     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 200 5 0622      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 08 D a y ( s )
Education Level:        AFQT: 39
MOS: 2311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of CONF :

NJP:

20031001 :        Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Underage drinking
         Specification 2: Failure to obey order or regulation, liberty buddy program
         Article (Larceny, unlawfully leaving a taxi without paying taxi fare, adjacent to B arracks 1217)
         Awarded: Suspended:

20040728 :         Article (Absence without leave , 2 specifications )
         Specification 1: Did on or about 20040615 at 0530 absent himself from the rifle range and remain s o absent until 0630 on 20040616
         Specification 2: D id on or about 20040623 at 06 3 0 absent himself from ammunition company PT formation and did remain so absent until 0830 on 20040623
         Awarded: Suspended:

20041001 :        Article (Failure to obey order or regulation, on or about 20040902 was seen at Hooters in Jacksonville, NC with an earring in his ear)
         Article 112 (Drunk on duty, SNM was summoned to the Ammunition Company office to discuss such incident. Upon arrival to the Company office , SNM was questioned about being intoxicated and SNM admitted he was still drunk from the night prior)
         Awarded: Suspended:

20050421 :        Article (Absence without leave, 0545, 20050406-1030, 20050406 , less than 24 hours)
         Article (Failure to obey order or regulation, playing cards inside the Ammunition Supply P oint; directly disobeying the storage and setup SOP forbidding horseplay at the ASP, 20050406)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20040728 :       For your recent Company NJP for violation of Article 86x2 of the UCMJ, unauthorized absence

- 2004 1 229 :       For under A rticle 92 of the UCMJ: failure to obey order or regulation in that on 20040903, LCpl S _ was seen at Hooters in Jacksonville with an earring in his ear and A rticle 112 of the UCMJ drunk on duty, in that on 200040903 LCpl S_ did arrive at the company office and was questioned and admitted to being intoxicated

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 youth and immaturity contributed to his misconduct.
 2 .        The Applicant contends his misconduct was minor , does not warrant an Under Other Than Honorable Conditions characterization, and was likely due to discrimination at his last duty station .
3.       The Applicant contends his post-service conduct warrant s consideration for an upgrade.

Decision

Date : 20 1 3 0410            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 . Th e 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 92 ( Failure to obey order or regulation , 4 specifications ), Article 121 ( Larceny , 1 specification ), Article 86 (Absence without leave , 3 specifications of less than 24 hours), and Article 112 ( Drunk on duty , 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 waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends youth and immaturity contributed to his misconduct. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his misconduct was minor, does not warrant an Under Other Than Honorable Conditions characterization, and was likely due to discrimination at his last duty station. During the Applicant’s 3 years and 10 months of service, he received two retention counseling warnings and was found guilty of multiple UCMJ violations at four NJPs. Violations of Articles 92, 112, and 121 are considered serious offenses per Appendix 12 of the Manual for Courts-Martial and 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, allowed him to continue his service despite multiple instances of misconduct. The Applicant contends his last command discriminated against him, but he provided no evidence to support that contention, and there is no evidence in the record to suggest that the Applicant received anything other than lenient behavior. An Under Other Than Honorable Conditions characterization 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 Applicant’s record clearly reflects a pattern of misconduct and demonstrates his performance and conduct during active service were prejudicial to good order and discipline. The Applicant may feel that his actions were minor , however, his command determined that his actions were unacceptable to the unit and constituted a significant departure from the conduct expected of a Marine. The NDRB determined his discharge was both proper and equitable and was keeping in line with what others received for similar patterns of misconduct . 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

  • USMC | DRB | 2015_Marine | MD1500352

    Original file (MD1500352.rtf) Auto-classification: Denied

    The Applicant’s record of service included 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article (Failure to obey an order or regulation, 2 specifications), and Article (General article, Drunk and disorderly in his conduct towards a SSgt (SDO) and Sgt (DNCO); and for of the UCMJ: Article 86 (Absence without leave), Article 92 (Failure to obey order or...

  • USMC | DRB | 2010_Marine | MD1002356

    Original file (MD1002356.rtf) Auto-classification: Denied

    Between November 1998 and June 2000, the Applicant received three NJPs, one civil arrest, and one 6105 retention warning, which included underage drinking, drunk on duty, driving while intoxicated, failure to obey orders and regulations, wrongful cohabitation with a female not his wife, and failure to pay debts and child support payments on time.Per the Marine Corps Separation and Retirement Manual, an Honorable characterization of service is warranted when the quality of a member’s service...

  • USMC | DRB | 2006_Marine | MD0600558

    Original file (MD0600558.rtf) Auto-classification: Denied

    Not appealed.970709: Forfeiture of pay and reduction in pay grade awarded at NJP vacated due to continued misconduct.970709: NJP for violation of UCMJ, Article 86: UA from 1630, 970522 to 0700, 970528.Violation of UCMJ, Article 107: Dismissed. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade...

  • NAVY | DRB | 2013_Navy | ND1301350

    Original file (ND1301350.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. DEPARTMENT OF THE NAVYNAVAL...

  • NAVY | DRB | 2014_Navy | ND1401447

    Original file (ND1401447.rtf) Auto-classification: Denied

    91, 86, and 92 Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. . DEPARTMENT...

  • USMC | DRB | 2014_Marine | MD1400292

    Original file (MD1400292.rtf) Auto-classification: Denied

    The Applicant’s record of service included 6105 counseling warning, for of the Uniform Code of Military Justice (UCMJ): Article 90 (Assaulting or willfully disobeying superior commissioned officer, 1 specification), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification), Article 92 (Failure to obey order or regulation, 2 specifications), Article 112 (Drunk on duty, 1 specification), Article 117 (Provoking speeches or gestures, 1...

  • USMC | DRB | 2013_Marine | MD1301268

    Original file (MD1301268.rtf) Auto-classification: Denied

    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 or a General Court-Martial Convening Authority review.However, the Applicant has a separation code of HKA1 on his DD Form 214, which indicates he waived his right to appear before an administrative separation board.Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT...

  • USMC | DRB | 2008_Marine | MD0801914

    Original file (MD0801914.rtf) Auto-classification: Denied

    The Board determined the awarded discharge characterization was appropriate for the numerous NJP’s and UCMJ violations involved and an upgrade based on youth and immaturity would be inappropriate. 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 the Applicant Complaint Procedures : If you believe that the decision in your case...

  • USMC | DRB | 2011_Marine | MD1101042

    Original file (MD1101042.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...

  • NAVY | DRB | 2008_Navy | ND0801920

    Original file (ND0801920.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: NONEActive: Period of Service Under Review: Date of Enlistment: 20021219Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20050629Highest Rank/Rate:AEANLength of Service: Inactive: 00 Years 06Months15 DaysActive: Years Months25 DaysEducation Level:AFQT: 75EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):NDSM...