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USMC | DRB | 2012_Marine | MD1201766
Original file (MD1201766.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120814
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)       20050425 - 20050814     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20050815     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20090319      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 34
MOS: 3381
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:              SCM:              SPCM:             CC:

Retention Warning Counseling:

- 20081009 :      For pending S pecial C ourt -M artial proceedings for violations of Article 86 (4 specifications) and Article 92 (4 specifications) , b ased on the charge sheets that have been referred to base legal on your recent misconduct, due to your lack of planning, personal concern , and failure to communicate your personal status. You failed to be at your appointed place of duty when required and failed to follow directions given to you b y your chain of command. This kind of behavior is not acceptable. This indicates a severe lack of integrity, judgment, common sense, and , specifically , a failure to follow instruction given to you by your chain of command. All direct violations of the UCMJ and violations of the Core Values that all Marines should take pride in.

- 20081014 :      For violations of the D_ Housing regulations that resulted in your lease termination. On 20080925 , you were removed involuntarily from your residency (address removed) for damage to private property that totaled $2,474.99, having unauthorized house guest , and possessing a prohibited exotic snake ( b oa constrictor). Your continued misconduct and lack of concern for rules and regulations are not acceptable. This indicates a severe lack of integrity, judgment, common sense, and , specifically , a failure to follow instruction given to you by your chain of command. All direct violations of the UCMJ and violations of the Core Values that all Marines should take pride in.







- 20081015 :      For v iolation of MCO 5800.16C, Chapter 15 , which directs active duty service members to provide depend e nt support. On 20081010 , this command was made awar e by CGIC case #0003204 that you have been delinquent in providing financial support to your mother for the care of your two children, totaling $777.00 a month. You also neglected to provide the appropriate legal documentation in order for your mother to effectively care for your children in your absence through power of attorney. This failure on your part directly affects your children’s schooling and health care requirements. Your continued misconduct and lack of concern for rules and regulations are not acceptable. This indicates a severe lack of integrity, judgment, common sense, and , specifically , a failure to follow instruction given to you by your chain of command. All direct violations of the UCMJ and violations of the Core Values that all Marines should take pride in.

- 20081117 :       For adultery. During a phone conversation between CWO3 R_ and J_ M_ your legal spouse , it was identified that the child you are currently carrying is not his. J_ stated that he was no longer living with you in California during the time of conception and that he was willing to participate in a DNA test in order to prove that he is not the biological father. Your continued misconduct and lack of concern for the rules and regulations are not acceptable. This indicates a severe lack of integrity, judgment, common sense, and , specifically , a failure to follow instruction given to you by your chain of command. All direct violations of the UCMJ and violations of the Core Values that all Marines should take pride in.

Administrative Corrections to the Applicant’s DD 214

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

          “ ”
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 contends she was treated and disc harged unfairly by her command.
2.       The Applicant contends other Marines with more misconduct were not separated.
3 .       The Applicant contends her administrative separation board was conducted improperly and in a biased manner.
 4 .       The Applicant contends her in - service performance outweighs her misconduct.

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 .
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 sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings . 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, submit a written statement, and request an administrative board . The administrative board convened on 26 J anuary 2009 and vote d 3-0 that a preponderance of the evidence prov ed all facts alleged in the separation notification, that separation was warranted with no suspension, and by a vote of 2-1 that the characterization of se rvice should be Under O ther Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends she was treated and discharged unfairly by her command. 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 h er issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she was treated unfairly or was wrongfully discharged. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Per Marine Corps Separation and Retirement Manual paragraph 6210.3 , a pattern of misconduct requires a minimum of two incidents occurring within one enlistment. The infractions may be minor or more serious. There must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. The misconduct need not have been the subject of nonjudicial punishment ( NJP ) or military or civilian conviction. The incidents of misconduct do not have to be of the same nature. With the Applicant’s four 6105 retention warnings during her enlistment, she met the requirements for administrative separation for a Pattern of Misconduct. After a complete review of the records and the Applicant’s statement, the NDRB determined her discharge was warranted, proper, and equitable. Relief denied.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends other Marines with more misconduct were not separated. 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. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.



: (Decisional) ( ) . The Applicant contends her administrative discharge board was conducted improperly and in a biased manner. During the separation proceedings, the Applicant exercised her right s to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the separation. Other than her statement, t he Applicant submitted no evidence to support her contention. A thorough review of the records shows that she received full due process and all applicable rights, that her proceedings were proper, including the conduct of the Administrative Separation Board, and her discharge was warranted , proper , and equitable. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends her in - service performance outweighs her misconduct. The Applicant states her character is demonstrated by not receiving any NJPs during her enlistment. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. T he decision to administratively separate a service member is made independently of the imposition of NJP. The c haracterization 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, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service 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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