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USMC | DRB | 2013_Marine | MD1300663
Original file (MD1300663.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130117
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)       20021101 - 20030223     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030224     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20050805      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 38
MOS: 3051
Proficiency/Conduct M arks (# of occasions): 2.0 ( ) / ( )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle CoC

NJP:

- 20030822 :      Article (Assault, on 20030816 assaulted PFC M_, by throwing a blouse over his head and striking him five or six times in the head)
         Awarded: Suspended: Suspension vacated on 20030904
- 20040520 :       Article (Absence without leave, 20040227-2004051 8 , 8 2 days)
         Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications )
         Specification 1: O n or about 040131 SNM was disrespectful in language toward Cpl B_ by saying “F*** O**” or words to that effect
         Specification 2: On or about 040203 SNM was disrespectful in language and deportment toward GySgt M_ by waving his hands toward him and saying, “ A h , this motherf**er, I don’t give a F***...charge me that don’t mean S**t to me” or words to that effect
         Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: On or about 20040131 SNM failed to obey an order given by Cpl B_ to call GySgt M_
         Specification 2: On or about 20040203 SNM failed to obey an order given by GySgt W_ to get to the position of parade rest
         Specification 3 : On or about SNM failed to obey an order or regulation given by GySgt M_ when he was told to get in the duty vehicle several times, after he fell out of the formation during a Battalion run
         Article ( Provoking speeches or gestures , SNM wrongfully use provoking words toward Sgt W_ to wit: “Better not push me motherf***er,” or words to that effect)
         Awarded: Suspended:

- 20040607 :       Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer )
         Article (Failure to obey order or regulation)
         Article (Wrongful use, possession, etc. of controlled substances , to wit: THC )
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 20040806 :       Art icle ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications )
         Specification 1: On or about 20040612, was disrespectful in language and deportment toward GySgt M_, a superior staff noncommissioned officer, then known to the accused to be a superior staff noncommissioned officer, who was then in the execution of his office, by saying “ Y ou don’t know me and you don’t know my background” and “I will take care of you, I know what to do and how to do it,” or words to that effect to the said GySgt M_ and continuing to speak out after having been told by the said GySgt M_ to shut up
         Specification 2: On or about 20040612, was disrespectful in language and deportment toward SgtMaj R_, a superior staff noncommissioned officer, then known to the accused to be a superior staff noncommissioned officer, who was then in the execution of his office, by continuing to talk back or disregard what the said SgtMaj R_ was saying to him and ref using t o cooperate with the said SgtMaj R_
         Art icle (General A rticle , 3 specifications )
         Specification 1: Wrongfully communicate to Sgt E_, a threat by saying, “That LtCol and those other people are just F***ing with me and I will take care of them” and “These people don’t know who they are messing with, I will come back and take down this command” or words to that effect
         Specification 2: On or about 20040612, disorderly, which conduct was prejudicial to good order and discipline in the armed forces
          Specification 3: Having been restricted to the limits of Headquarters and Service Company, 3d Battalion, 3d Marines area, place of work, worship, dining facility and the BAS/dispensary by a person authorized to do so, did, on board Marine Corps Base Hawaii, Kaneohe Bay Hawaii, on or about 20040612, break said restriction by consuming alcohol and by driving a personally owned vehicle
          Sentence : 11 months (20040613-20040813, 6 1 days)

Retention Warning Counseling :

- 20030822 :       For your disrespectful, belligerent attitude and your recent non-judicial punishment for assault. On 20030804 you approached a Senior Marine because her T-shirt was not tucked in and engaged in a verbal altercation. When the Corporal tried to correct you in a respectful manner you used vulgarity when addressing her and stated that she was a poor leader. Your conduct after the incident occurred was perceived as disrespectful to a noncommissioned officer. You were also recently awarded NJP for assault on a fellow Marine.

- 20030822 :       For your recent NJP for violation of Article 128 of the UCMJ. You assaulted a fellow Marine by throwing a blouse over his head and striking him five or six times in the head.

- 20040520 :       For misconduct that resulted in NJP on 20040520.

- 20040603 :       For unsatisfactory conduct and failure to comply with your assignment of Battalion restriction. On several occasions you have been (UA) for sign-in musters, you have been seen driving a privately owned vehicle, and you have also not remained at your appointed place of duty after hours.

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 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C . 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 contends youth and immaturity were the underlying cause of his misconduct .
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 NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 128 (Assault) , Article 86 ( Absence without leave , 82 days), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 3 specifications), Article 92 (Failure to obey order or regulation , 4 specifications), Article 112a (Wrongful use, possession, etc. of controlled substances , marijuana), and Article 117 ( Provoking speeches or gestures ) , and for of the UCMJ: Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 2 specifications) and Article 134 (General A rticle , 3 specifications) . The Applicant also had a pre-service drug waiver for using marijuana 23 times prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 31 O ctober 2002 . The court sentenced the Applicant to a Bad Conduct Discharge and confinement for 11 months . The court’s sentence was upheld by the appellate court.

: (Decisional) ( ) . The Applicant contends youth and immaturity were the underlying cause of his misconduct. The Applicant was 23 years of age when he enlisted in the Marine Corps. The Applicant had 29 total months of service and was counseled for misconduct 4 times, had 3 NJPs for misconduct, and a Special Court-Martial that r esult ed in confinement and a Bad Conduct Discharge. While the Applicant may feel his youth and immaturity were the underlying cause 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 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.

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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