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USMC | DRB | 2013_Marine | MD1300892

Original file (MD1300892.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20130405

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)       19940917 - 19950705     Active:

Period of Service Under Review:
Date of Current Enlistment: 19950706     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19990716      H ighest Rank:
Length of Service : Y ea rs M on ths 00 D a ys
Education Level:        AFQT: 53
MOS: 3451
Proficiency/Conduct M arks (# of occasions): /    Fitness R eports:

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

Period of CONF :

NJP:

- 19970203 :       Article (Failure to obey order or regulation)
         Article (General A rticle, breaking restriction)
         Awarded: Suspended:

- 19990317 :      Article (Absence without leave , 0900, 19990225 until 1106, 19990308, 11 days)
         Article (Assaulting or willfully disobeying superior commissioned officer)
         Awarded: Suspended: Vacated 19990527

- 19990607 :       Article (Absence without leave , 0900-1700, 19990530 )
         Awarded: RESTR EPD Suspended:

SCM:

- 19970121 :       Art icle (Failure to obey order or regulation , 2 specifications )
         Specification 1: Wrongfully operating a motor vehicle without proof of valid insurance
         Specification 2: Wrongfully consuming alcoholic beverages while under the legal age of 20
         Article 111: (Drunken or reckless operation of a vehicle, aircraft, or vessel , 2 specifications )
         Article 134 (General A rticle, wrongfully leave the scene of a n accident without making his identity known)
         Sentence :

SPCM:    CC:

Retention Warning Counseling :

- 19970203 :       For unsatisfactory performance of duty as a Marine and disobedience to lawful order s.

- 19981117 :       For failure to meet minimum standard s of performance , specifically, failing the Marine Corps Physical Fitness Test on 19981030.

- 19990127 :       For you misrepresented yourself to your immediate supervisor by securing early to obtain a new state motor vehicle operator’s license. You were apprehended on 19990112 for driving under state suspension for unpaid traffic violations. This incident caused you to be in an unauthorized status by falsely securing from your work section. Your further misconduct was evidenced by your failure to honor your personal debts. During November 1998 you were counseled on your financial irresponsibility. Again in December 1998 you failed to honor your monthly bills . You have also failed to obey a lawful order given to you on three occasions by SNCOs in your chain of command to provide the Administrative Office appropriate documentation concerning your Basic Allowance for H ousing. Your failure to provide these documents caused you to be overpaid.

- 19990331 :       For your P age 11 entries, 2 NJPs , and Summary Court-Martial.

Administrative Corrections to the Applicant’s DD 214

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

         “ ”
         “ MISCONDUCT ”
         “ (11) 990225-990308 ”

The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, 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 P1900.16E), effective 31 January 1997 until 31 August 2001.

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 his last command unjustly changed his discharge from Honorable to Under Other Than Honorable Conditions at his Expiration of Active Service, because he had a civilian incident concerning his driver’s license. He further contends this was his only instance of misconduct at his last command, and he was just awarded the Good Conduct Medal.

Decision

Date: 20 1 4 022 7 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, for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation) , Article 134 ( General A rticle, breaking restriction), Article 86 ( Absence without leave, 2 specifications), and Article 90 (Assaulting or willfully disobeying superior commissioned officer ) , and for of the UCMJ: Article 92 ( Failure to obey order or regulation), Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel , 2 specifications), and Article 134 (General A rticle, wrongfully leave the scene of an accident without making his identity known). 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 his right to request an administrative board .

: (Decisional) ( ) . The Applicant contends his last command unjustly changed his discharge from Honorable to Under Other Than Honorable Conditions at his Expiration of Active Service, because he had a civilian incident concerning his driver’s license. He further contends this was his only instance of misconduct at his last command, and he was just awarded the Good Conduct Medal. While the Applicant may have only had one instance of misconduct at his last command, over the course of his enlistment he had four retention warnings and was found guilty of violating multiple UCMJ articles at three NJPs and a Summary Court-Martial. The Applicant met the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct) and was notified of administrative separation processing before he reached the end of his obligated active service. He acknowledged all of his rights in writing and elected to consult with counsel and submit a written statement to the Separation Authority. Since the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. B ased on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Furthermore, a review of the Applicant ’ s record reveals he was not awarded a Good Conduct Medal. To be awarded a Good Conduct Medal, a member must serve for three years without misconduct. During the Applicant’s first three years of service, he already had a retention warning and findings of guilt at an NJP and a Summary Court-Martial. The confusion likely arose from Block 18 on the Applicant’s DD Form 214, which reset the three year counter to 7 June 1999, which corresponds to his third and last NJP conviction. After a complete review of the records, 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 | MD1300892

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