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USMC | DRB | 2013_Marine | MD1300923

Original file (MD1300923.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)       20010510 - 20010617     Active:          20010618 - 200 41014
                                             200 41015 - 200 71018
Period of Service Under Review:
Date of Current Enlistment: 2007101 9     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110218      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 15 D a y ( s )
Education Level:        AFQT: 32
MOS: 3051 / 8411
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      (3) (2) (2) KD S M MM (5) COC (2)

Periods of UA / CONF :

NJP:

- 20100119 :       Article (Frauds against the United States)
         Article (General A rticle - willful and unlawful intent to alter a public record)
         Awarded: Suspended:

SCM:     SPCM:

CIVIL ARREST:

- 20080925 :       Charges: Driving under the influence of alcohol, refused all Field Sobriety, Breathalyzer, and Blood Tests.

CC:

- 20090105 :       Offense: Pled guilty to violating Washington State Law (RCW 46.61.5249) Negligent Driving First Degree
         Sentence : Fined $1,000.00 with $500.00 suspended, sentenced to 90 days in jail with 90 days suspended, and place d on 2 years probation

Retention Warning Counseling :

- 20090928 :       For violation of Article 92

- 20100119 :       For NJP conducted on 20100119 for violation of Articles 132 and 134

- 20100621 :       For civilian court conviction, larceny, and pattern of misconduct

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 his discharge for a Pattern of Misconduct was improper.

Decision

Date: 20131114 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. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 132 (Frauds against the United States) and Article 134 (General A rticle - willful and unlawful intent to alter a public record) , one civilian arrest for Driving Under the Influence, and one civilian conviction for Negligent Driving First Degree . 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 elected rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence supported the Applicant ’s pattern of misconduct and recommended separation with a characterization of General (Under Honorable Conditions).

: (Decisional) ( ) . The Applicant contends his discharge for a Pattern of Misconduct was improper. The Applicant emphasized that his contention is not whether there was in fact a pattern of misconduct, but rather about the fact that the Applicant did not engage in any misconduct following his 6105 counseling warnings on 19 January 2010 and 21 June 2010. The Applicant had received an NJP and a 6105 counseling warning for failure to report his civilian arrest and conviction, but this NJP was set aside and removed from the record. The Applicant’s counsel referenced the Naval Military Personnel Manual (MILPERSMAN), in particular, the requirements for a Pattern of Misconduct as specified in Article 1910-140. The NDRB determined MILPERSMAN Article 1910-140 to be irrelevant in the Applicant’s case. The applicable regulation for the Applicant’s discharge is the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). Per MARCORSEPMAN Paragraph 6210.3, separation processing for a pattern of misconduct may not be initiated until the member has been counseled in accordance with the guidelines for counseling set out in paragraph 6105. The Applicant was notified of separation proceedings on 18 August 2010, and the record shows he had three 6105 counseling warnings prior to this notification. The Applicant’s counsel contends the Applicant’s first 6105 counseling warning became void once the first NJP was set aside. The Applicant’s defense counsel letter to the Separati on Authority from 24 January 2011 brought up a similar contention. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption. The evidence provided by the Applicant does not refute the presumption that the Applicant’s administrative board and Separati on Authority were correct in their decisions that the Applicant had a proper 6105 counseling warning and was afforded a reasonable opportunity to overcome his deficiencies. Per MARCORSEPMAN Paragraph 6105, no certain amount of time can be used to define “reasonable opportunity. ” The defense counsel letter to the Separati on Authority from 24 January 2011 clearly shows the Separating Authority had the opportunity to consider the Applicant’s contention and still decided the Applicant met the requirements for a Pattern of Misconduct . T he NDRB determined that although the Applicant’s original NJP was set aside, his original 6105 counseling wa s still valid. T he record shows his retention warnings met the requirement directed in MARCORSEPMAN Paragraph 6210.3 . The NDRB discerned no impropriety or inequity in the Applicant’s separation for a Pattern of 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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USMC | DRB | 2013_Marine | MD1300923

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