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USMC | DRB | 2013_Marine | MD1300526
Original file (MD1300526.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130108
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)       20080508 - 20080624     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080625     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100902      H ighest Rank:
Length of Service : Y ea rs M on ths 09 D a ys
Education Level:        AFQT: 56
MOS: 0481
Proficiency/Conduct M arks (# of occasions):     Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:

- 20091013 :       Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: On 20090909, failed to obey a lawful order given by a Staff Non-Commissioned Officer and Non-Commissioned Officer, in that SNM did not stay in the barracks when instructed to do so .
         Specification 2: On 20090910, disobeyed a lawful order when she was instructed to change into proper civilian attire and return for her marriage counseling classes. SNM went to her house off base, fell asleep , and failed to follow either order given to her by a Non-Commissioned Officer .
         Article (False official statements , on 20090919, gave false official statement to the Company Gunnery Sergeant about the place she stayed. SNM said she informed her chain of command she was staying at another’s house. When faced with the question from the Commanding Officer, SNM said she did not stay at the previously mentioned Marine’s house. SNM also stated she did not go home after she was instructed to attend marriage classes )
         Awarded: Suspended:

- 20100524 :      Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , in that SNM did, on or about 20100226, knowingly and willfully disrespect a Non-Commissioned Officer at Bldg 1201 aboard Camp Lejeune, NC, by yelling and screaming, and then throwing her identification card at him )
         Awarded: Suspended:

SCM:     SPCM:    CC:





Retention Warning Counseling :

- 20090408 :       For assignment to the Marine Corps Body Composition Program

- 20090506 :       For UA from your appointed place of duty on 20090427

- 20090812 :       For unsatisfactory performance/progress while assigned to the Marine Corps Body Composition Program

- 20091013 :       For conviction at company NJP for violation s of the UCMJ: Article 92 (Failure to obey an order or regulation ) and Article 107 ( false official statement s)

- 20100520 :       For conviction at company NJP for violation of the UCMJ: Article 9 1( I nsubordinate conduct toward a Non-Commissioned Officer )

- 20100722 :      For violation of UCMJ: Article 115 ( Malingering )

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 an upgrade t o qualify for educational benefits.
2.       The Applicant contends she was assigned to a second term of limited duty one day prior to her separation and never received a pre-separation physical.
3 .       The Applicant contends her misconduct was the result of mistreatment by members of her command.
4 .       The Applicant contends s he was denied t he opportunity to request mast.

Decision

 Date: 20 1 3 1016            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 92 ( Failure to obey order or regulatin, 2 specifications) , Article 107 ( False official statements) , and Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer). 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 and submit a written statement, but waived her right to an administrative board .

: (Nondecisional) The Applicant seeks an upgrade t o qualify for educational 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. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends she was assigned to a second term of limited duty one day prior to her separation and never received a pre-separation physical. The record does not contain, nor did the Applicant provide, an y evidence that she was improperly separated based on her medical status. In fact, a ppropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Furthermore, the NDRB determine d this issue has no relevance to the propriety and equity of her discharge . The NDRB determined she was properly and equitably discharged for a Pattern of Misconduct and received a lenient General characterization of service. Relief denied.

: (Decisional) ( ) . The Applicant contends her misconduct was the result of mistreatment by members of her command. Per the Applicant’ s statement, she became pregnant in 2009 and gave birth on 29 March 2010, 7 weeks premature ly . The Applicant stated that her pregnancy was complicated by hyperemesis gravidarum, pre-eclampsia, and toxemia. The Applicant contends her command did not follow proper protocol with regard to her physical condition , which caused undue stress to her and her unborn child. The Applicant stated she was harassed on multiple occasions, as detailed in her statement, and unjustly charged with violations of the UCMJ. The Applicant received two NJPs for violations of the UCMJ: Article 92 ( F ailure to obey order or regulation, 2 specifications ), Article 107 ( F alse official statement), and Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer , or petty officer ) , and six 6105 retention warning counselings. The Applicant r eceived a 6105 counseling on 22 July 2010 for violation of UCMJ Article 115 (Malingering ) as determined by the finding of a Line of Duty Determination investigation that on or about 09 March 2009,

the Applicant feigned suicide by ingesting 25 milligrams of Ambien while 32 weeks gestation in an attempt to avoid work. The Applicant bears the burden of overcomin g the government’s presumption of regularity through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any documented evidence for the NDRB’s consideration, to support the contention that her misconduct was the result of mistreatment by her command. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of h er conduct or performance of duty outweighed the positive aspects of h er service record, and the awarded characterization of service was warranted. Relief denied.

4 : (Decisional) ( ) . The Applicant contends she was denied the opportunity to request mast. The Applicant submitted her request mast application dated 11 August 2010 , which she contends was denied without explanation. The documentation submitted to the NDRB is incomplete and does not provide credible evidence that her command wrongly denied her the right to request mast. Despite the Applicant’s contention that she was wrongly denied the opportunity to request mast, the NDRB determined her discharge proceedings were conducted properly and fairly. Furthermore, the Applicant waived her right to request a hearing before an Administrative Separation Boa rd. If the Applicant believed there were mitigating circumstances, it was h er obligation to contest those charges at the time they were made. During an Administrative Separation Board, s he would have had the opportunity to mount a defense against the charges. 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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