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USMC | DRB | 2013_Marine | MD1301178
Original file (MD1301178.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130430
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)       20020412 - 20020722     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020723     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070312      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 37
MOS: 2141
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

NJP:

- 20031001 :       Article (Failure to obey order or regulation)
         Article (False official statements)
         Awarded: Suspended:

- 20040224 :       Article (Absence without leave - accountability check-in from a 96 hour liberty)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20050908 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

SCM:

- 20070215 :       Art icle (False official statement)
         Art icle (Larceny and wrongful appropriation)
          Sentence : (20070215-20070310, 24 days)

SPCM:    CC:

Retention Warning Counseling :

- 20031007 :       For displaying a pattern of failing to follow both written and verbal lawful orders. You have been accused of disobeying direct orders that were given by a Medical Officer and lying to an Officer of the United States Marine Corps. These alleged acts place you in direct violation of Article s 92 and 107. Your lack of maturity and failure to follow orders or regulations has established a blatant pattern of misconduct. This i s not acceptable behavior and conduct for a United States Marine.

- 20040512 :       For displaying a pattern of failing to follow both written and verbal lawful orders. You have been accused of being unauthorized absence (UA) for morning formation. SSGT instructed you on 20040504, to be at BB 270 at 0615 on 20040505 for morning accountability formation. On 20040505, at 0615 you were UA until 0845 for morning formation. You have been verbally counseled and formally counseled on numerous occasions. On 20040209 you were sent to NJP for the same offenses as stated above. This alleged act places you in direct violation of Article s 86 and 92. Your disregard for authority, lack of concern for others and failure to follow orders or regulations has established a blatant pattern of misconduct. This is not acceptable behavior and conduct for a United States Marine.

- 20040708 :       For displaying a pattern of failing to follow both written and verbal lawful orders. You have been accused of failure to obey order or regulation. On or about 20040701 you disobeyed an order given to you by MSGT to obey rules and regulation of the road governed by state laws. With disregard to his order, you were traveling 88 MPH in a 65 MPH zone. The Virginia State Police on I - 95 gave you a speeding ticket on 20040701. You were ordered by your Platoon Sergeant to return to BB 270 Camp Lejeune, NC. You were also ordered to keep in contact with your Platoon Sergeant during your return trip and to contact your Platoon Sergeant on your arrival at BB 2708 , which you failed to do. This alleged act places you in direct violation of Article s 92 and 111. Your disregard for authority, lack of concern for others , and failure to follow orders or regulations has established a blatant pattern of misconduct. This is not acceptable behavior and conduct for a United States Marine.

- 20050908 :       For violation of Article 92 in that you operated a vehicle aboard Camp Lejeune under suspended driving privileges. This indicates a sever e lack of integrity, judgment, common sense, and specifically a failure to follow instructions given to you by your chain of command. All are direct violations of the UCMJ and said violations of the Core Values that all Marines should take pride in.

NDRB Documentary Review Conducted (date):        20121018
NDRB Documentary Review Docket Number:   MD12-00063
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 P1900.16 F ), 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 107 and 121 .


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant contends youth and immaturity were contributing factors in his misconduct.
2.       The Applicant contends his disciplinary problems were the result of stress caused by family hardships.
3.       The Applicant contends he has paperwork showing he was processed for deployment as a single Marine.
4 .       The Applicant contends his post-service conduct is worthy of consideration for an upgrade .

Decision

 Date: 20 1 3 1212            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 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 86 ( Absence without leave , 1 specific ation ), Article 92 ( Failure to obey order or regulation , 3 specific ation s), and Article 107 ( False official statements , 1 specific ation ) , and Summary Court-Martial for of the UCMJ: Article 107 ( False official statements , 1 specific ation ) and Article 121 ( Larceny and wrongful appropriation , 1 specific ation ) . 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 waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board as part of his pre-trial agreement for a guilty plea at his S ummary C ourt- M artial .

: (Decisional) ( ) . The Applicant contends youth and immaturity were contributing factors in his misconduct. While the Applicant may feel his youth and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his disciplinary problems were the result of stress caused by family hardships. While the Applicant may feel that his family difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment s , such as his chain of command, the Navy Chaplain , Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct.

The 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 his issue. T he Applicant’s record of service shows he was drawing unauthorized Basic Allowance for Housing (BAH) for six months prior to his first combat deployment and continued to draw unauthorized BAH through his first combat deployment in support of Operation IRAQI

FREEDOM, his post deployment dwell period, his second combat deployment in support of Operation IRAQI FREEDOM, and into the subsequent post - deployment period until the audit conducted by the Naval Criminal Investigative Service (NCIS) confirmed he had unduly received about $28,354.16 of BAH. As this undue receipt of BAH was occurring for over six months before the Applicant’s first combat deployment , the NDRB determined there had been ample time before his deployment to update his marital status , and there were ample opportunities to update and correct his marital status during routine records audits. Further, during the Applicant’s testimony , he confirmed regularity in government affairs by acknowledging he conducted regular administrative records audits as prescribed by standing regulations , to include pre - and post - deployment , which c ould have corrected his marital status concerning his housing allowance. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. When confronted with the government evidence , t he Applicant willingly entered a guilty plea to the cha rges preferred as part of a pre trial agreement and agreed to waive his right to an administrative separation board. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. The NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.

: (Decisional) ( ) . The Applicant contends he has paperwork showing he was processed for deployment as a single Marine. The Applicant provided 179 day deployment orders for Operation IRAQI FREEDOM II dated 21 July 2004. These orders had a proceed date of 15 September 2004 and had a Microsoft Excel document attachment listing the Applicant as a deploying member and denoting his marital status as single and having a meal card. The NDRB notes that while this is an official travel order and does reflect his marital status at the time of deployment , it does not complete the administrative actions required to perform a correct audit of his records, update his marital status, and stop the BAH that he had been unduly collecting for five months at the time this deployment order was issued. According to regulations, the Applicant was responsible for conducting a records audit after his change in marital status, prior to his combat deployments, after his combat deployments, and other occasions as required. During the conduct of these records audits , the Applicant had the opportunity and obligation to correct his marital status and report the significant additional income he was receiving from his BAH. The Applicant’s testimony confirmed regularity in the conduct of government affairs. When charges were brought against him he consulted with legal counsel and entered into a pretrial agreement. By entering into a pretrial agreement the Applicant avoided a Special Court - Martial , which could have imposed a significantly harsher punishment to include a punitive BAD CONDUCT DISCHARGE. The NDRB found neither the evidence of record nor the evidence and testimony presented by the Applicant to contain sufficient mitigating or extenuating factors to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of 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 continuous employment since March 2012, a copy of his February 2004 divorce decree, a copy of his current marriage certificate, the birth certificates for his three children, a copy of his child custody proceedings, documentation showing financial responsibility for monthly rent payments, proof of clearing issues with his Florida state driver’s license, proof of completed professional certification, and five 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. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. 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 is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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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