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USMC | DRB | 2012_Marine | MD1201845
Original file (MD1201845.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20120907
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)       20070925 - 20071112     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20071113     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20111118      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 06 D a y ( s )
Education Level:        AFQT: 40
MOS: 3521
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

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

Periods of UA / CONF : UA: 20110503-20110504, 2 days (I n Hands of Civil Authorities ) / CONF:

NJP:

- 20110714 :      Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: Military Protective Order on 20110508
         Specification 2: Military Protective Order on 20110509
         Specification 3: Military Protective Order on 20110624
          Awarded: Suspended:

- 20110815 :      Article (Absence without leave 0600, 20110729 - 0600, 20110801, 3 days)
         Article (Failure to obey order or regulation by driving on base on suspended license)
         Awarded: Suspended: 5 DAYS

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20080925 :      F or insubordinate conduct toward a staff noncommissioned officer. Specifically, willfully disobeying the lawful order of the Company First Sergeant to terminate a relationship that was initiated while assigned as a student aboard Marine Corps Combat Service Support School. SNM was counseled on fra ternization on terms of military equality with enlisted members in a certain manner. SNM was told that the conduct was prejudice to good order and discipline and of a nature to bring discredit upon the armed forces.

- 20110130 :      For being cited for careless driving 70 MPH in a 55 MPH zone, in Jacksonville, NC. I understand that my lack of responsibility has negative consequences, and also endangers the lives of others. I have been directed to comply will all civilian laws, as well as all military rules, regulations, and the Uniform Code of Military Just ice . I also acknowledge that it is the c ommand ’ s intent to assign me to the Force Preservation Program for a minimum of 30 days.

- 20110228 :      For being cited for careless driving, 51 MPH in a 35 MPH zone, in Jacksonville, NC. I understand that my lack of responsibility has negative consequences, and also endangers the lives of others. I have been directed to comply with all civilian laws, as well as all military rules, regulations, and the Uniform Code of Military Just ice . I also acknowledge that it is the c ommand ’ s intent to assign me to the Force Preservation Program for a minimum of 30 days.

- 20110308 :      For your violations of Articles 86, 87 , and 92 of the UCMJ. On or about 20110106 you missed a unit movement to the National Training Center, Fort Irwin, CA. On or about 20110206 you were not at your appointed place of duty and failed to provide a copy of your family care plan. On four different occasions you disobeyed a lawful order and refused to provide a family care plan. You were awarded punishment for 14/14 days of restriction and EPD and lost of 7 days pay for one month. Restriction and EPD was suspended.

- 20110715 :      For violation of Article 92 (3 specifications).

- 20110815 :      For your violation of Articles 86 and 92 (2 specifications).

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

 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 employment and education opportunities.
2.       The Applicant contends her misconduct was due to youth and immaturity.
3.       The Applicant contends her post - service conduct is worthy of consideration for an upgrade.
4.       The Applicant contends she received nonjudicial punishment ( NJP ) twice for the same offense and so her P ro ficiency (Pro) and Conduct (Con) marks are not accurate and inequitably led to her General discharge.
Decision

 Date: 20 1 3 0613            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 and NJPs for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 1 specification) and Article 92 ( Failure to obey order or regulation, 4 specifications). The Applicant completed her required active duty service and was discharged with a General (Under Honorable Conditions) characterization of service due to average Conduct marks below 4.0 .

: (Nondecisional) The Applicant seeks an upgrade to qualify for employment and education opportunities. 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 her misconduct was due to youth and immaturity. While the Applicant may feel her youth and immaturity were the underlying causes of h er misconduct, the record clearly reflects her willful misconduct and demonstrated she had not met the requirements for Honorable service. The evidence of record does not demonstrate the Applicant was not responsible for her conduct or that she should not be held accountable for her 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 her post- service conduct is worthy of consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, she failed to provide any documentary evidence on her behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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 NDRB determined the awarded characterization of service shall remain General (Under Honorable Conditions). Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends she received NJP twice for the same offense and so her Pro and Con marks are not accurate and inequitably led to her General discharge. In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization of service will be Honorable for Marines with average Proficiency marks of 3.0 or higher and average Conduct marks of 4.0 or higher. The Applicant completed her obligated service and her overall marks for proficiency and conduct were 4.0 and 3.7, respectively. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action or characterization of the Applicant’s service. The Applicant’s record indicated nothing improper with the awarding of P ro/ C on marks for the appropriate periods of misconduct. She had two distinct NJPs for different offenses , one in July 2011 and one in August 2011, and was properly awarded low Pro/Con marks after each NJP. As a result, the NDRB determined an upgrade was not 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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