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USMC | DRB | 2013_Marine | MD1300800
Original file (MD1300800.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130314
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)       20081201 - 20090104     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090105     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100701      H ighest Rank:
Length of Service : Y ea r M on ths 27 D a ys
Education Level:        AFQT: 69
MOS: 3043
Proficiency/Conduct M arks (# of occasions): / )         Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP:    SCM:             SPCM:   CC:

Retention Warning Counseling :

- 20100309 :      For violation of UCMJ Article 134, by wrongfully and without authority wearing the insignia or grade of a Lance Corporal of Marines on uniform. (Marine refused to acknowledge this entry; was made aware of this adverse entry on 10 May 2010 . )

- 20100314 :       For violation of UCMJ Article 92 x2, f or failing to contact mentor every 24 hours as directed by the Commanding Officer while assigned as high risk under II Marine Expeditionary Force Preservation Program. (Marine refused to acknowledge this entry; was made aware of this adverse entry on 10 May 2010 . )
- 20100323 :       For violation of UCMJ Article 92 x2 , f or using disrespectful language and failing to obey a lawful order toward a staff noncommissioned officer. (Marine refused to acknowledge this entry; was made aware of this adverse entry on 10 May 2010 . )
- 20100402:       For failure to exhibit respect for authority, willingness to obey orders, and exercise good judgment while in the performance of his duties.

- 20100414 :      For violation of UCMJ Article 117, by wrongfully using provoking words and gestures to the Commanding Officer by laughing, snickering, and smiling while being counseled on performance. (Marine refused to acknowledge this entry; was made aware of this adverse entry on 10 May 2010 . )



- 20100427 :      For v iolation of UCMJ Article 134, by breaking restriction by being out of uniform when checking in with the Battalion Officer of the Day. (Marine refused to acknowledge this entry; was made aware of this adverse entry on 10 May 2010 . )
- 20100510 :      For viola tion of UCMJ Article 83 , f or fraudulent enlistment, appointment, or separation by concealing the fact that he had been expelled from the Alabama Agricultural and Mechanical University for possession of a .40 caliber pistol, a box of ammunition, stolen goods, a digital scale and 21 ziploc bags. (Marine refused to acknowledge this entry; was made aware of this adverse entry on 10 May 2010 . )
- 20100527 :      For violation of UCMJ Article s 89 and 92, f or disrespecting the Battalion Commander by not rendering the appropriate greeting and hand salute to a commissioned officer and failure to have a shave chit at all times.

- 20100527:      For violation of UCMJ Article s 91 and 92 , by failing to remain in the uniform of the day and clean barracks room. Instead , changed in civilian attire and left the barracks. Continued to show blatant disrespect to noncommissioned officers while being corrected for not cleaning barracks room by using profanity and disrespectful body language.

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 he was denied due process.
2.       The Applicant contends he wrongfully received 1 2 back-dated P age 11 entries after he was acquitted at a S pecial C ourt- M artial for violation of Uniform Code of Military Justice (UCMJ) Article 112a.

Decision

 Date: 20 1 3 1030            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 nine 6105 counseling warnings . Based on the offense s 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 . The administrative board, by majority vote, determined that the preponderance of evidence prove d all acts or omissions alleged in the notification, recommended the Applicant be separated from the Marine Corps Under Other Than Honorable Conditions , and that the separation not be suspe nded. The Separation Authority concurred with the board’s findings and discharged the Applicant Under Other Than Honorable Conditions for a Pattern of Misconduct.

: (Decisional) ( ) . The Applicant contends he was denied due process. The Applicant cited a letter of deficiency , dated 23 June 2010, submitted by h is def ense counsel regarding the Applicant’s administrative separation board. The Staff Judge Advocate (SJA) , 2d Marine Logistics Group, reviewed the administrative separation board proceedings to include the matters submitted on behalf of the respondent following the administrative separation board to include the letter of deficiency dated 23 June 2 010. Based upon his review of all proceedings and matters presented both during and after the proceedings, t he SJA found that sufficient evidence was presented for the members of the administrative board to determine by a preponderance of the evidence that the Applicant did commit the misconduct alleged , that the basis for separation (misconduct due to a pattern of misconduct pursuant to paragraph 6210.3 of the Marine Corps Separation and Retirement Manual [MARCORSEPMAN]) did exist , that based upon the Applicant’s overall record of conduct and service, a recommendation for separation from the Marine Corps was warranted , and that the recommendation that the Applicant’s characterization of service should be Under Other Than Honorable Conditions is consistent with the guidance provided in paragraph 1004 of the MARCORSEPMAN. After a complete review of the Applicant’s records and statements, the NDRB determined the Applicant received full due process, and his discharge was warranted, proper, and equitable. Relief denied.

 : (Decisional) ( ) . The Applicant contends he wrongfully received 12 back-dated P age 11 entries after he was acquitted at a S pecial C ourt- M artial for violation of UCMJ Article 112a. In accordance with Paragraph 6210.3 of the MARCORSEPMAN, a minimum of two incidents occurring within one enlistment is required for administrative processing under this paragraph (Pattern of Misconduct), and the misconduct need not have been the subject of NJP or military or civilian conviction. The record shows the Applicant received 5 back-dated 6105 counseling warnings on 10 May 2010. Additionally, the Applicant received 6105 counseling warnings on 13 April 2010, 14 April 2010, 10 May 2010, and 28 May 2010. The Applicant’s 6105 counseling warning of 14 April 2010 for violation of Article 112a and his subsequent acquittal of the Article 112a violation at S pecial C ourt- M artial were not considered in his discharge process. As s uch, the NDRB found this contention without merit, discerned no impropriety , and found the characterization of the Applicant’s discharge equitable and consistent with the characterization of discharge given others in similar circumstances. 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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