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USMC | DRB | 2012_Marine | MD1201579

Original file (MD1201579.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120710

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)       20080716 - 20081214     Active:

Period of Service Under Review:
Date of Current Enlistment: 20081215     Age at Enlistment:
Period of E nlistment : Years M onth
Date of Discharge: 20111225      H ighest Rank:
Length of Service : Y ea rs M on th 11 D a ys
Education Level:        AFQT: 49
MOS: 5811
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of CONF :

NJP:

- 20090715 :       Article (Absence without leave , 2100-2330, 20090706)
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article 92 (Failure to obey order or regulation , 2 specifications )
         Awarded: Suspended:

- 20101217 :       Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: R ode another Marine ’ s motorcycle without a valid state ’ s driver’s license
         Specification 2: Rode another Marine ’ s motorcycle without a valid motor cycle endorsement on his state ’ s driver’s license
         Specification 3: Rode another Marine ’ s motorcycle without completing the mandatory Motor Cycle Safety Course through base safety
         Article 107: ( False official statement s)
         Awarded: Suspended:

- 2011022 8 :      Article (Absence without leave , 0430-0600, 20110211)
         Awarded: Suspended: Vacated 20110318

SCM:             SPCM:          CC:

Retention Warning Counseling :

- 20090715 :       For you received Company Level NJP

- 20100205 :       For your assignment to the Marine Corps BCP.

- 20100405 :       For your demonstrated shortfalls in the military attributes of force, judgment, reliability, obedience , and self-discipline as evidenced by your unauthorized absence . On 20100331, your appointed place of duty was Page Field House at 1400 for Physical Training in accordance with the Body Composition Program. This is the third time you failed to be at your appointed place of duty on time.

- 20110228 :       For your NJP on 20110228 for a violation of Article 86 of the UCMJ, specifically , you were found guilty of unauthorized absence.

- 20110318 :       For your continued misconduct and violations of the UCMJ, specifically , failure to obey lawful order, misbehavior of sentinel or lookout, and false official statement.

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 he deserves an upgrade based on his honorable and faithful service.
2.       The Applicant contends a lost recording of the administrative separation board proceedings affected the final decision to separate him.

Decision

Date: 20 1 3 0509          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. The 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 (Absence without leave 2100-2330, 20090706) , Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) , Article (Failure to obey order or regulation, 5 specifications: [1-2] Failure to obey order or regulation; [3] Rode another Marine’s motorcycle without a valid state ’ s driver’s license; [4] Rode another Marine’s motorcycle without a valid motor cycle endorsement on his state ’ s driver’s license; [5] Rode another Marine’s motorcycle without completing the mandatory Motor Cycle Safety Course through base safety ), and Article 107 (False official statements) . 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 elected his rights to consult with a qualified counsel and appear before an administrative separation board, but waived his right to submit a written statement. The administrative separation board voted unanimously that the preponderance of the evidence supported the basis for separation (Misconduct - Pattern of Misconduct), but they also voted unanimously to recommend that the Applicant be retained in the Marine Corps. The Convening Authority disagreed with the board’s recommendation, and, as a result, properly forwarded the discharge package to the Assistant Secretary of the Navy (Manpower & Reserve Affairs) to make the final decision on the Applicant’s retention. The ASN (M&RA) decided to discharge the Applicant with a General (Under Honorable Conditions) characterization for Misconduct (Pattern of Misconduct).

: (Decisional) ( ) . The Applicant contends he deserves an upgrade based on his honorable and faithful service . The Applicant submitted numerous letters of character reference. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, which included five retention warnings, three NJPs, and below-average Conduct marks of 3.9 over his enlistment, the NDRB determined the Applicant ’s service w as honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Relief denied.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends a lost recording of the administrative separation board proceedings affected the final decision to separate him. The NDRB determined a lost recording of the administrative separation board proceedings did not affect the decision by the ASN (M&RA) to discharge the Applicant. Written board proceedings were available during multiple reviews by the chain of command. 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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USMC | DRB | 2012_Marine | MD1201579

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