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USMC | DRB | 2012_Marine | MD1201889

Original file (MD1201889.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20120912

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)       20020815 - 20030720     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030721     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070804      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 39
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20050112 :       Article (Absence without leave, on or about 2200, 20050105, without authority, absent himself from his unit, to wit: H&S Company, 2d Assault Amphibian B attalion, located on board Camp Lejeune, NC, and did remain so absent until he turned himself in on or about 0900, 20050106)
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Having knowledge of a lawful order issued by Gunnery Sergeant ______ to return immediately to his work section following his dental appointment, an order which it was his duty to obey, did on board Camp Lejeune, NC, on or about 0800, 20050111, fail to obey the same by wrongfully remaining in the BAS from 0800 until 1030.
         Specification 2: Having knowledge of a lawful order issued by BO 5560.2L, Traffic Regulations, to wit: not to operate a vehicle without a valid drivers license, an order which it was his duty to obey, did, in Fayetteville, NC, on or about 4 and 5 January 2005, fail to obey the same by operating a vehicle without a valid drivers license.
         Awarded: Suspended:

- 20050606 :      Article (Absence without leave , 2 specifications )
         Specification 1: On or about 20050504, without authority, absent himself from his unit, to wit: accountability formation at the Rifle Range at 0500, SNM remained absent until he called Sergeant ______ for a ride and arrived to the Rifle Range on or before 0610.
         Specification 2: On or about 0600, 20050512, without authority, absent himself from his unit, to wit: H&S Company, 2d Assault Amphibian Battalion, located on board Camp Lejeune, NC, and did remain so absent until he turned himsel f in on or about 2150, 20050527, 15 days.
         Awarded: Suspended:

- 20050727 :      Article (General A rticle - Restriction breaking, to wit: on or about 1500, 20050723, break said restriction by not reporting for battalion restriction muster on time)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20040806 :       For your diagnosed physical condition not a disability, specifically (left wrist injury), and any resultant or aggravated condition which interferes with the effective performance of your duties.

- 20050112 :       For your diagnosed physical condition not being a disability (REFRACTURE LEFT WRIST) and any resultant or aggravated condition which interferes with the effective performance of your duties.

- 20050304 :       For Company level Non-judicial punishment for Violations of A rticles 86, 92. Your performance to date is unacceptable and will not be tolerated. Your judgment and professional conduct are not what is expected from a M arine. You will correct your poor judgment and conduct.

- 20050607 :       For Battalion NJP on 20050606 for violations of Article 86. On 20050504 you were UA from the Rifle Range from 0500 until 0610. On 20050512 you were in a UA status until 20050527. Due to your lack of planning and personal concern you did not allow yourself enough time or means of transportation to get you to the Rifle Range on time. You failed to make the 0500 time line. You showed total disregard on your behalf by putting yourself in a UA status for 16 days. This kind of behavior is not acceptable. This indicates a sever e 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.

- 20050727 :       For violation of Article 134, for brea k ing Battalion Restriction. Specifically, you were 23 minutes late for your 1500 sign in on 20050723, which is an unauthorized absence. This indicates a severe lack of 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:

         “ 20 03 07 21 ”
         “ ”

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:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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

Applicant’s Issues

1. The Applicant contends he received an Honorable discharge certificate in the mail.

Decision

Date : 20 1 3 0606 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 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 86 ( Absence without leave , 3 specifications), Article 92 (Failure to obey order or regulation , 2 specifications), and Article 134 (General A rticle, breaking restriction , 1 specification). The Applicant completed his 4 year active service contract on 4 August 2007 and was discharged with a General (Under Honorable Conditions) characterization due to his poor average Conduct marks.

: (Decisional) ( ) . The Applicant contends he received an Honorable discharge certificate in the mail. T he Honorable Discharge certificate he received is from Marine Corps Reserve Support Command and indicates that the Applicant successfully completed the remainder of his obligated service in the Individual Ready Reserve after the completion of his required active service in the Marine Corps. As for his active 4 year service, he properly received a 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 his obligated service and his overall marks for proficiency and conduct were 4. 1 and 3 . 9 , respectively. Therefore, the Applicant did not meet the standards of conduct for an Honorable discharge for the period of active service from 21 July 2003 to 4 August 2007 (which included making up 15 days of being absent without leave) . Upon discharge from active service, the Applicant was transferred to Marine Corps Reserve Support Command until his final discharge on 29 August 2010. The Applicant properly and equitably received a General (Under Honorable Conditions) characterization of service for his active-duty service from August 2003 to August 2007. 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.

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 .

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 | MD1201889

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