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USMC | DRB | 2013_Marine | MD1300670

Original file (MD1300670.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130208

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)       20080804 - 20090111     Active:

Period of Service Under Review:
Date of Current Enlistment: 20090112     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110901      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 62
MOS: 0311/0321
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2) Pistol

Periods of CONF :

NJP:
- 20101012 :       Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: On 20100923, at 1400, SNM disobeyed a direct order from Commanding Officer to not drink and drive in Newport, NC
         Specification 2: On 20100923, at 1400 disobeyed MCO 1700.22F by consuming alcohol under the age of 21
         Specification 3 : On 20100923, at 0945, disobeyed BO 5500.1G by having an unregistered firearm in the barracks
         Article ( Drunken or reckless operation of vehicle, aircraft, or vessel , on 20100923, at 0555, SNM operated a motor vehicle with a BAC of 0.12 in Newport, NC)
         Awarded: Suspended:

- 20101029 :      Article (Absence without leave, failed to check in with the Bn OOD at A-71, 2d Recon Bn at 2000 and 2145 on 20101019 and also 0700, 1800, 2000, and 2145 on 20101020 )
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20101201 :      Article (Absence without leave, failed to check in with the Bn OOD at A-71, 2d Recon Bn, at 1800 20101116)
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: On 20101116, at 1800, SNM disobeyed a direct order from the Commanding Officer by not checking in with the Bn OOD during the prescribed times for restriction aboard at A-71, 2d Recon Bn, Camp Lejeune, NC
         Specification 2: On 20101111, at 1300, SNM broke restriction by going to the PX without consent from the chain of command or OOD.
         Article (General A rticle, on 20101111, at 1300, violated MCO P1020.34 by being found in the C ourthouse Bay PX in uniform and without a shave)
         Awarded: Suspended:

- 20110124 :      Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: On 20110104, about 1900, at 2d Recon Bn, Camp Lejeune, NC did fail to obey the order of the Commanding Officer by violating the terms of his restriction within the Bn Restriction letter
         Specification 2: On 20110104, about 1900, at 2d Recon Bn, Camp Lejeune, NC fail to obey a lawful order by driving on base while on - base driving privilege was suspended by Base Traffic Court
         Awarded: Suspended:

SCM:             SPCM:          CC:

Retention Warning Counseling :

- 20101012 :       For your recent NJP for violation of Articles 92 x 3 (Failure to obey order or regulation) and Article 111 (Dru n ken or reckless operation of vehicle, aircraft, or vess e l) of the UCMJ . Specifically , that you drove your POV while being impaired, blew a 0.12 BAC, sped at a speed of 110 mph in a 55 mph zone, drank alcohol while under the age of 21, and had a .38 caliber pistol in your barracks room.

- 20101029 :       For your recent NJP for violation of Articles 92 (Failure to obey order or regulation) and 86 ( U nauthorized absence) of the UCMJ. Specifically , that you failed to report to the Battalion OOD for regular check-in and EPD for two consecutive days. You were told you would be excused while you were in the field for the week, but on Tuesday and Wednesday 19 and 20 October 2010 you were not in the field.

- 20101117 :       For your recent NJP for violation of Articles 134 (Restriction, breaking), 92 x 2 (Failure to obey order or regulation), and Article 86 (Absence without leave) of the UCMJ. Specifically , that on 20101111 you broke Battalion level restriction by going to the PX without permission, was in the PX in uniform without a shave, and that on 20101116 at 1800 did not show up for check in and was found by the DNCO in your barracks room asleep.

- 20110124 :       For your recent NJP for violation of Articles 92 x 2 (Failure to obey order or regulation) of the UCMJ. Specifically , that on 20110104 you broke restriction by driving a POV even though your restriction papers tell you that you are not authorized to do so.

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 contends errors by the Administrative Separation Board denied him his rights.
2.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

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 sta ndards 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 regulation , 7 specifications) , Article 111 ( Drunken or reckless operation of vehicle, aircraft, or vessel , BAC .12%), Article 86 (Absence without leave , 2 specifications ), and Article 134 ( General A rticle, failed to maintain grooming standards) . 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, submit a written statement, and request an administrative board . On 10 May 2011, an Administrative Separation Board convened and determined by a vote of 3-0 that a preponderance of the evidence supported that the Applicant committed a pattern of misconduct, that the Applicant should be administratively separated, and that the characterization of service should be Under Other Than Honorable Conditions. The Separation Authority concurred with the b oard’s findings and recommendations and ordered the Applicant to be discharged Under Other Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends errors by the Administrative Separation Board denied him his rights. The NDRB concurs with the Applicant’s contention and determined there were multiple improprieties with the convening and administration of the separation board. As a result, the NDRB determined that although the Applicant’s discharge was warranted, it was conducted improperly and further determined an Under Other Than Honorable Conditions characterization of service was improper. However, the Applicant’s record during his 2 years and 7 months of service included four retention warnings, multiple UCMJ violations as adjudicated at four NJPs, and average Proficiency and Conduct marks of 3.3/2.9, respectively. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. After a careful review of the records, the NDRB determined a General (Under Honorable Conditions) characterization of service for Misconduct is warranted. Partial relief granted. Full relief to Honorable was not granted because of the significant misconduct and poor Conduct marks during the Applicant’s enlistment.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. The NDRB considers 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 his enlistment. The Applicant provided a personal statement and a character reference letter. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade as each discharge is reviewed on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. T he Board determined the Applicant’s documentation does not demonstrate if in-service misconduct was an aberration. The characterization was appropriate considering the length of service and UCMJ violations. 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 By a vote of 4-1 (four for General, one for Honorable), the awarded characterization of service shall but the narrative reason for separation shall remain (four for Misconduct, one for Secretarial Authority) . 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 | MD1300670

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