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USMC | DRB | 2012_Marine | MD1201660

Original file (MD1201660.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120731

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)       19980422 - 19980727     Active:

Period of Service Under Review:
Date of Current Enlistment: 19980728     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20020815      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 38
MOS: 1371
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

NJP:
- 19990121 :       Article (Absence without leave, 0801, 19990112 - 1500, 19990119, 7 days)
         Awarded: (30 days) Suspended: (15 days)

- 19990323 :      Article (Failure to obey order or regulation, violate a lawful general order to wit: BnO 1700.3G, by drinking under the legal drinking age )
         Awarded: Suspended:

- 20010708 :      Article (Failure to obey order or regulation)
         Article (False official statement)
         Awarded: Suspended:

SCM:
- 19990716 :       Art icle (Absence without leave, 0701, 19990615 - 2210, 19990715, 29 days)
         Sentence : 29 days (19990716 - 19990808, 2 3 days)

- 20020719 :       Article (Absence without leave , 2 specifications )
         Specification 1: On or about 20020422, without authority, absent himself from his unit, and did remain absent until on or about 20020423 ( 1 day )
         Specification 2: On or about 20020613, without proper authority, go from his appointed place of duty to wit: Company C office at building FC-573
         Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , on or about 20020613, was disrespectful in language toward SSgt F_, a noncommissioned officer, by saying to him, “Go ahead, Mother f****er, put me in the brig, I hope you have chasers” and “ Y ou gonna chase me mother f***er ”
         Article (Failure to obey order or regulation, on or about 20020613, having knowledge of a lawful order issued by Sgt D_, to get out of PFC P_’s automobile, an order which it was his duty to obey, failed to obey the same by wrongfully failing to get out of PFC P_’s automobile
         Sentence :

SPCM:    CC:

Retention Warning Counseling :

- 199901 21 :       For violation of Article 86, UCMJ, for your unauthorized absence along with your immaturity and lack of judgment.

- 19990303 :       For the following deficiencies: in that you violated UCMJ Articles 86 and 91 by failing to show up to remedial PT at 0700 on 19990227 which was disobeying a lawful order given to me by my class adviser, a SNCO.

- 19990324 :       For violation of Article 92, specifically being charged with drinking underage on 19990319.

- 20001129 :       For negligence with government property, in that you did violate general orders (1) and (5) by abandoning your security post and the M240G machine gun at the post on 20001115 during pre-deployment training at Fort A.P. Hill, VA

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 P1900.16E), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 91, 92, and 107 .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       The Applicant contends family problems contributed to his misconduct.
2.       The Applicant contends his command treated him unfairly after his first absence without leave period.
3.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date: 20 1 3 05 21          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, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 1 specification of 7 days) , Article 92 ( Failure to obey order or regulation , 2 specifications), and Article 107 ( False official statement , 1 specification) , and for of the UCMJ: Article 86 ( Absence without leave , 1 specification of 29 days and 2 specifications of 24 hours or less), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 1 specification), and Article 92 ( Failure to obey order or regulation , 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 met with counsel but waived rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends the characterization of his discharge should be upgraded because he suffered a lot of setbacks due to his father’s medical problems and his parent ’ s financial difficulties. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment s , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his command treated him unfairly after his first absence without leave period. 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 his command treated him unfairly. After reviewing his record, the appearance seems to be quite the opposite. Despite repetitive and serious misconduct, his command allowed him to continue to serve. In fact, it appears his command intended on letting him serve until the end of his enlistment, which would have resulted in an Honorable discharge, however, his last incidence of misconduct in July 2002 convinced his command that he was no longer fit for military service. The Applicant’s service included four retention warning s , t hree nonjudicial punishments , and two S ummary C ourts- M artial. N othing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . Quite the opposite, it shows a command that gave the Applicant multiple opportunities to correct his poor behavior. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants 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 and numerous training certificates. 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 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

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USMC | DRB | 2012_Marine | MD1201660

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