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USMC | DRB | 2013_Marine | MD1300255
Original file (MD1300255.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20121115
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)       20050212 - 20050814     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050815     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110311      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 28 D a y ( s )
Education Level:        AFQT: 82
MOS: 2171
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20080725 :       Article (Failure to obey order or regulation, to wit: Marine Corps Order 1020.34G Marine Corps Uniform Regulation, by affixing articles of jewelry through the skin in the nipple area)
         Awarded: Suspended:

- 20081107 :      Article 120 ( Rape, sexual assault, and other sexual misconduct )
         Article 125 (Sodomy, on or about 20081029 , commit sodomy with an unknown male subject via a video posted on a homosexual website )
         Article (General A rticle, in that SNM , a married man, did, at an unknown location, on or about 20081029, wrongfully have sexual intercourse with a man not his wife)
         Awarded: Suspended:

- 20090401 :      Article (Desertion, 20090112-20090330)
         Article (Absence without leave, 20090112-20090330)
         Awarded: Suspended:

- 20100126 :      Article (Failure to obey order or regulation , 3 specifications )
         Specification s 1 and 2 : Having k nowledge of a lawful order issued by his superiors to come to work on 20100117 and 20100118 to check in from the seventy two hour liberty period, an order which was his duty to obey, did at 0730 on 20100116, 1000 on 20100117 and 1800 on 20100118 on board Camp Lejeune, NC fail to obey the same by not being at his appointed place of duty .
         Specification 3 : Having knowledge of a lawful order issued by his superiors to be in formation at 0630 on 20100125, an order which it was his duty to obey, did at 0630 on 20100125, on board Camp Lejeune, NC, fail to obey the same by not being at his appointed place of duty .
        

         Article (General A rticle, drunkenness incapacitati on for performance of duties thr ough prior wrongful indulgence in intoxicating liquor, in that SNM was at 0945 on board Camp Lejeune, NC on or about 20100115, as a result of wrongful previous overindulgence in intoxicating liquor, . 151 BAL, for the proper performance of his duties .
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20091102 :       For violation of Articles 92 and 86, specifically, on 20091102 you failed to be at your appointed place of duty at 0630 and did not arrive until 1300, furthermore you failed to contact anyone as to your whereabouts other than you claimed to be stuck in traffic at 0645 and you failed to give your exact location.

- 20100126 :      For violation of Article 92x3 and Article 134 , which resulted in a Company Level NJP.

- 20100202 :      For violation of Article 92 , s pecifically , on 20100202, you failed to present yourself for Road Guard Duty.

- 20110307 :      For failure to maintain accountability for military property, specifically, your CIF issued gear totaling $4,046.37 in violation of Article 108 of the UCMJ , losing military property.

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. 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 wants an upgrade for G.I. Bill benefits.
2 .       The A pplicant contends his Pro ficiency (Pro) and Conduct (Con) marks were not filed as often as they should have been , which lowered his enlistment average s .

Decision

Date: 20 1 3 0905            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 Applicant’s record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Desertion, 20090112-20090330) , Article (Absence without leave, 20090112-20090330) , Article (Failure to obey order or regulation , 4 specifications : Specification 1: F ailure to obey Marine Corps Order 1020.34G Marine Corps Uniform Regulation, by affixing articles of jewelry thro ugh the skin in the nipple area, Specification s 2-4 : N ot being at his appointed place of duty ), Article 120 ( Rape, sexual assault, and other sexual misconduct) , Article 125 (Sodomy, on or about 20081029 , commit sodomy with an unknown male subject via a video po sted on a homosexual website), and Article (General A rticle, 2 specifications : S pecification 1: W rongfully have sexual intercourse with a man not his wife and S pecification 2: D runkenness incapacitation for performance of duties ). The Applicant was discharged at the completion of his required active service with a General (Under Honorable Conditions) characterization of service .

Issue 1: (Nondecisional) The Applicant wants an upgrade for G.I. Bill 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. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his Pro/Con marks were not filed as often as they should have been, which lowered his enlistment averages. The Applicant further claims he received periods of N/A , which further lowered his average. The NDRB concurs with the Applicant that he should have received markings for C onduct for additional periods , and he should have received C onduct marks for his semiannual periods. However, the record shows the Applicant should have received a 0.0 C onduct mark for his desertion status , which was dated 1 1 February 2009. Further, the record shows the Applicant had an NJP during one of the three semiannual N/ A periods (31 July 2008) , which would warrant a C onduct mark of no higher than 3.9 . In addition, the Applicant was in a status of unauthorized absence during his semiannual N/A period of 31 January 2009 , which would also warrant a C onduct mark of no higher than 3.9. Based on the Applicant’s service record, the NDRB determined t hat additional Pro/Con marks that were not properly annotated in to the record would have lowered the Applicant’s Pro/Con average . Therefore, the NDRB determined the Applicant’s General (Under Honorable Conditions) characterization at the end of his enlistment was proper. 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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