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USMC | DRB | 2013_Marine | MD1300960
Original file (MD1300960.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130402
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)       20070601 - 20070813     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070814     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20110706      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 79
MOS: 6074
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      LoA (4)

Periods of UA / CONF :

NJP:

- 20080402 :       Article (Drunken or reckless operation of a vehicle, aircraft, or vessel)
         Article 134 (General A rticle , 3 specifications )
         Specification 1: While intoxicated, attempted to purchase drug from active duty member patronizing Sharky’s Bar and Grill.
         Specification 2: Operated a vehicle in a reckless and w a nton manner by being intoxicated with a fellow Marine in the vehicle and on a public highway.
         Specification 3: Solicit GySgt W_ to commit an act in violation of the UCMJ, specifically , sell her illegal drugs
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080417 :       For poor judgment, failure to follow rules and regulations. Specifically, on 20080309, you solicited another Marine to commit an offense , specifically , to sell you drugs . You further compounded the situation by operating a motor vehicle in a reckless and w a nton manner while being intoxicated.

- 20080716 :       For exceeding Marine Corps height /weight standards on 20080625.

- 20081212 :       For misconduct on 20081128 , you willfully disobeyed a lawful order from the III MEF Commanding General, by consuming Japanese sake, which exceeds the alcohol content restrictions of III MEFO 1050.7.



- 20091008 :       For you failed to properly maintain Marine Corps standards for body composition as required by MCO 6100.13.

- 20101116 :       For your violation of Article s 91 and 134 of the UCMJ, to wit: on or about 20101003 you were disrespectful in language and deportment toward a non-commissioned officer by being verbally combative and using vulgar language. You also communicated a threat to another Marine, specifically , a threat of physical violence.

- 20110302 :       For your violation of Article 91 of the UCMJ, to wit: On or about 20101109, you demonstrated a lack of judgment and control by physically touching a male SNCO in an inappropriate area.

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 she did nothing wrong , was harassed during her entire service, and her career was over when she refused a Sergeant Major’s offer to have a relationship with a Gunnery Sergeant.
2 .       The Applicant contends she did not refuse drug treatment or fail a drug test.
3.       The Applicant contends she w as raped while serving in Iwakuni, Japan.
4.       The Applicant contends her post-service conduct warrants consideration for an upgrade.

Decision

 Date: 20 1 3 1204            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 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel) and Article 134 (General A rticle, 3 specifications). Based on the offense s committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the administrative board procedure, the Applicant exercise d right to consult with a qualified counsel but waived her rights to submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends she did nothing wrong , was harassed during her entire service, and her career was over when she refused a Sergeant Major’s offer to have a relationship with a Gunnery Sergeant. T he government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produ ced any evidence, to support her contention that she was harassed , unfairly treated, or wrongfully processed for administrative separation. The record indicates the Applicant received six 6105 retention warning counselings and one NJP for violating UCMJ Article s 111 and Article 134. In accordance with appropriate regulations, the Applicant’s record of misconduct warrants sepa ration for a Pattern of Misconduct and Serious Offense. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Furthermore, the Applicant waived her right to request a hearing before an Administrative Separation Board and submit a rebuttal to the separation. If the Applicant believed there were mitigating circumstances, it was her obligation to contest those charges at the time they were made. During an Administrative Separation Board, she would have had the opportunity to mount a defense against the charges. Relief denied.
: (Decisional) ( ) . The Applicant contends she did not refuse drug treatment or fail a drug test. The Applicant was not separated for Misconduct (Drug Abuse), though she could have been with her retention warning for soliciting drugs from an active duty service member. The Applicant was separated in accordance with Marine Corps Separation and Retirement Manual p aragraph 6210.3 for a Pattern of Misconduct, the requirements of which she met with her NJP and six retention warnings. The NDRB determined her discharge was warranted, proper, and equitable. Relief denied.





: (Decisional) ( ) . The Applicant contends she was raped while serving in Iwakuni, Japan. T he NDRB did give appropriate consider ation to the Applicant’ s allegation and how it might have affect ed her performance and ability to conform to the military’s standards of conduct and discipline. Besides the Applicant’s statement, she did not provide, nor did the record contain, any evidence to substantiate this contention other than notes from a Department of Veterans Affairs counseling session . The NDRB determined the Applicant’s statement alone does not form a foundation on which relief can be granted. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends her 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 the period of service under review. The Applicant provided a personal statement , evidence of Department of Veterans Affairs counseling sessions, and four character references. 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 from an unfavorable discharge as each discharge is reviewed by the Board 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 characterization of service received 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 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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