Search Decisions

Decision Text

USMC | DRB | 2012_Marine | MD1201764
Original file (MD1201764.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120815
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)       20010719 - 2001 0805     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20010806     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050204      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 29 D a y ( s )
Education Level:        AFQT: 53
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle (3) (2) MM

Periods of UA / CONF :

NJP:

- 20020506 :      Article (Failure to obey order or regulation , 2 specifications )
         Specifications 1 and 2: Underage drinking
         Article 112 (Drunk on duty )
         Awarded: Suspended:

- 20020912 :      Article (Failure to obey order or regulation - underage drinking )
         Awarded: CCU Suspended:

- 20030711 :      Article (General A rticle , 2 specifications )
         Specification 1: Wrongful previous overindulgence in intoxicating liquor incapacitated for proper performance of duties
         Specification 2: Drunk and disorderly
          Awarded: Suspended:

- 20030729 :      Article (Absence without leave)
         Article (General A rticle , 2 specifications )
         Specification 1: Breaking restriction
         Specification 2: Drunk and disorderly
          Awarded: Suspended:

SCM:     CC:




SPCM:

- 20040914 :      Article 81 (Conspiracy - conspired to distribute anabolic steroids)
         Article (Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: Wrongful ly introduce anabolic steroids
         Specification 2: Wrongfully distribute anabolic steroids
         Sentence : FOR 6 MONTHS (20040706-20040917, 74 days) FOR 2 MONTHS RESTR

Retention Warning Counseling:

- 20020502 :      For your misconduct. Drinking underage and for being drunk on duty while assigned as barracks ADNCO.

- 20020912 :      For your misconduct. Consuming alcohol while under the legal age of 21 on 20020824.

- 20030711 :      For my misconduct. Specifically lack of integrity by cheating on an assignment at Scout Sniper Basic Course which was cause for my being dropped from the school.

- 20030711 :       For my alcohol - related incident, specifically , my over indulgence in alcohol and being drunk and disorderly.

- 200 4 1011 :      For my conviction at SPCM. On 20040914 I was found guilty for violating Article 112a.

Administrative Corrections to the Applicant’s DD 214

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

          “ 2001 08 06 ”
          “ ”
          “ MARCORSEPMAN 6210.3 ”

 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:                  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 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 seeks an upgrade to qualify for education benefits.
2.       The Applicant contends his post - service accomplishments are worthy of consideration for an upgrade.

Decision

Date: 20 1 3 0530            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT.

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, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 1 specification ), Article 92 ( Failure to obey order or regulation, 3 specifications) , Article 112 ( Drunk on duty, 1 specification), and Article 134 (General A rticle, 4 specifications) , and for of the UCMJ: Article 81 ( Conspiracy, 1 specification) and Article 112a (Wrongful use, possession, etc. of controlled substances, 2 specifications) . 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 rights to consult with a qualified counsel and request an administrative board, but waived his right to submit a written statement .

: (Nondecisional) The Applicant seeks an upgrade to qualify for education 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 re-characterization 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. Furthermore, 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.
: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable. 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 statement and five character references. 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. The 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

  • USMC | DRB | 2010_Marine | MD1000629

    Original file (MD1000629.rtf) Auto-classification: Denied

    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. The Good Conduct Medal statement in Block 18 of his DD-214 is a reference to the restart of the time counter for good conduct consideration and is not the awarding of the medal.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record...

  • USMC | DRB | 2012_Marine | MD1200526

    Original file (MD1200526.rtf) Auto-classification: Denied

    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. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of...

  • USMC | DRB | 2012_Marine | MD1200800

    Original file (MD1200800.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/To Congress member: Pertinent Regulation/Law A. Paragraph 6210,...

  • NAVY | DRB | 2004_Navy | ND04-00270

    Original file (ND04-00270.rtf) Auto-classification: Denied

    ND04-00270 Applicant’s Request The application for discharge review was received on 20031204. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “completion of required active service.” The Applicant requests a documentary record discharge review. Specification 5: Wrongfully possess illegal substances on 020825, to wit: approximately 5 grams of anabolic steroid material, liquid...

  • NAVY | DRB | 2001_Navy | ND01-00210

    Original file (ND01-00210.rtf) Auto-classification: Denied

    ND01-00210 Applicant’s Request The application for discharge review, received 001211, requested that the characterization of service on the discharge be changed to Honorable. The Board determined, by the applicant’s own admission, he did not follow existing Navy directives, when going to Mexico. The applicant states he realizes he should have reported his friend for using steroids.

  • USMC | DRB | 2011_Marine | MD1100281

    Original file (MD1100281.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 the administrative separation process, the Board found the discharge was proper and equitable at the time of discharge.However, based on Applicant and witness testimony, and the evidence presented at the hearing, the awarded...

  • USMC | DRB | 2014_Marine | MD1400992

    Original file (MD1400992.rtf) Auto-classification: Denied

    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. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2011_Navy | ND1101368

    Original file (ND1101368.rtf) Auto-classification: Denied

    The Applicant was not entitled to an administrative separation board.The Applicant was separated from the Navy on 2 December 2009 with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct. ” 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. Additionally, the NDRB has no authority to...

  • NAVY | DRB | 2000_Navy | ND00-00746

    Original file (ND00-00746.rtf) Auto-classification: Denied

    ND00-00746 Applicant’s Request The application for discharge review, received 000525, requested that the characterization of service on the discharge be changed to honorable. When the board convened, my records were not present so it is hard for me to understand how the board could make a decision based on my past service when they had nothing to refer to. Relief is not warranted.The applicant’s second issue states: “After a review of the Former Service Members (FSM) DD Form 293...

  • USMC | DRB | 2013_Marine | MD1300944

    Original file (MD1300944.rtf) Auto-classification: Denied

    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.A former servicemember has 15 years from his discharge date to apply to the NDRB for a review of his discharge characterization and narrative reason for separation. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...