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USMC | DRB | 2013_Marine | MD1300369

Original file (MD1300369.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20121207

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)       20070222 - 20070911     Active:

Period of Service Under Review:
Date of Current Enlistment: 20070912     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100108      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 31
MOS: 0121
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Pistol LoA (5) CoA

Period of CONF :

NJP:

- 20080905 :       Article (Absence without leave, failed to go at time prescribed to Friday Night Parade at 1730, 20080815)
         Awarded: Suspended: (15 days) Vacated 20081009

- 20081211 :      Article (Absence without leave , 3 specifications )
         Specification 1: Failed to go at time prescribed to work at 0730, 20081117
         Specification 1: Failed to go at time prescribed to work at 0730, 20081118
        Specification 1: Failed to go at time prescribed to work at 0730, 20081124
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: To come to work at 0730, by coming at 1030, 20081117
         Specification 2: To come to work at 0730, by not coming to work at all 20081118
         Awarded: Suspended:

- 20091222 :       Article (Absence without leave, failed to go at the time prescribed to his appointed place of duty, MBW S-1 office at 1200)
         Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifi cations)
         Specification 1: Disrespectful in language to Cpl V_ by saying , “I am busy” and “Well, I don’t care either ” or word s to that effect
         Specification 2: Disrespectful in language to CWO4 C_ by saying , “I don’t feel like working today ”
         Awarded: Suspended: (15 days)

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080606 :       For violation of A rticle 86, UCMJ, UA, specifically my failure to be at my appointed place of duty from 0730 to 1152, on 20080530. Despite repeated warning and counseling at the NCO level to be at my appointed place of duty at the time directed on two previous occasions, I failed to take corrective action.

- 20080905 :       For on 20080818 during PT you did not exert maximum effort. The group was running to Lincoln Memorial. All you wanted to do was walk instead of running. When told by Sgt R_ to jog instead of walk, you did not listen and held up the group from completing PT. You would start jogging when the Company 1stSgt was in view and then would walk when he was not in sight . Sgt R_ tried motivating you, but your response was that you were having a hard time breathing, although Sgt R_ observed that yo ur breathing was under control.

- 20080915 :       For your recent NJP on 20080815 you were in an unauthorized absence when you did not show up for a Friday Night Parade formation at 1730.

- 20081021 :       For on 20081005 you failed to show up for your 1100 check in for restriction. When you finally checked in at 1200, you were asked why you did not check in and your response was , “I was sleeping . ”

- 20090811 :       For A rticle 92, in that on or about 20090813, your conduct during Company PT was unacceptable. While the company was at attention you refused to obey orders and continued to stand at ease. Article 134, during the run portion of the PT you continually fell out of formation and refused to stay in formation as directed by your Company First Sergeant.

- 20090916 :       For your assignment to the Marine Corps Body Composition Program (BCP) .

- 20091223 :       For on or about 20091130 you failed to go to your appointed place of duty, which was the S-1 office at 1200. You did not arrive until 1445. On or about 20091123, you were disrespectful toward Cpl V_ by saying , “I am busy” and “Well, I do not care either,” or words to that effect, when told to print out a Basic Individual Record (BIR). You were also disrespectful toward CW04 C_ by saying, “I do not feel like working today,” or words to that effect, when told to correct a diary on UDMIPS.

- 20091230 :       For A rticle 86, in that on or about 20091225, you failed to be at your appointed place of duty at the appointed time. While on a restricted status you were required to check in with Duty Staff Non-Commissioned Officer of the Marine Barracks Washington at 0800. You failed to do so. You had to be woken up by your NCOIC around 0845 and you finally were able to check in at 0900. One hour late.

- 20100105 :       For A rticle 86, in that on or about 20100101, you failed to be at your appointed place of duty at the appointed time. While on a restricted status you were required to check in with Duty Staff Non-Commissioned Officer of the Marine Barracks Washington at 0800. You failed to do so. You had to be woken up by the DNCO. Your finally were able to check in at 0828. Again the same day at 1900 you failed to check in for restriction with the SDNCO. The DNCO woke you up and you checked in at 1932. Again UA X2 on the same day.

Administrative Corrections to the Applicant’s DD 214

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

         “ ”
         “ MISCONDUCT ”

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 :

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 to reenlist.
2.       The Applicant contends he was young and irresponsible and some of his leadership had a vendetta against him.

Decision

Date: 20 1 3 0829          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 nine 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 5 specifications), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 2 specifications) and Article (Failure to obey order or regulation, 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 right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative board .

: (Nondecisional) The Applicant seeks to reenlist. 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 B oard for Correction of Naval Records 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.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was young and irresponsible and some of his leadership had a vendetta against him. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The NDRB recognizes that many of our servicemembers 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. Also, there is no evidence in the record, nor did the Applicant provide any documentation, that his leadership had a vendetta against him or acted improperly. The Applicant’s 3 NJPs and 9 retention warnings were all proper. Although the Applicant is asking for a second chance, it appears the Marine Corps gave him at least 11 chances to correct his behavior. The NDRB determined his discharge was warranted, proper, and equitable. 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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USMC | DRB | 2013_Marine | MD1300369

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