Docket No..MD13-01253

 

ex-Pvt, USMC
CURRENT DISCHARGE AND APPLICANT’S REQUEST

Application Received: 20130514

Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT

Authority for Discharge: (per DD 214) MARCORSEPMAN 6210.3 [PATTERN OF MISCONDUCT]

Applicant’s Request: Characterization change to: HONORABLE
Narrative Reason change to: REQUESTED, BUT NOT SPECIFIED

SUMMARY OF SERVICE
Prior Service:
Inactive: USMCR (DEP) 20060804 - 20070617 COG Active: NONE
Period of Service Under Review:
Date of Current Enlistment: 20070618 ' Ape at Enlistment: 19
Period of Enlistment: 4 Years 0 Months
Date of Discharge: 20110408 Highest Rank: PRIVATE FIRST CLASS
Length of Service: 03 Year(s) 09 Month(s) 21 Day(s)
Education Level: 12 AFOQT: 32
MOS: 3531
Proficiency/Conduct Marks (# of occasions): NFIR Fitness Reports: NOT APPLICABLE

Awards and Decorations (per DD 214): SSDR GWOTEM GWOTSM NDSM
Periods of UA: 20091019 - 20091111, 24 days; 20101003 - 20101114, 43 days
NIP: 2
- 20080515: Article 92 (Failure to obey order or regulation, consuming alcohol while underage)
Article 111 (Dninken or reckless operation of vehicle, aircraft, or vessel, BAC of . 091)
Awarded: FOP RIR RESTR EPD Suspended: NONE

- 20110224: Article 86 (Absence without leave, 20101003 - 20101115, 43 days)
Article 92 (Failure to obey order or regulation, fail to check in for restriction muster)
Awarded: FOP RESTR EPD Suspended: FOP

SCM: 1

- 20091125: Article 86 (Absence without leave, 20091019 - 20091112, 24 days).
Sentence: RIR E-1 FOP RESTR

SPCM: NONE Cc: NONE

Retention Warning Counseling: 2

- 20091006: For violation of Article 121, on 20090801, you attempted to use your government credit card while not in
a travel status and when the transaction was declined you took it upon yourself to call Citibank and had
the card temporarily activated. You authorized transactions which totaled $3,338.06.

- 20110224: For your recent NJP for violating Articles 86 and 92.

Key: NFIR - Not found in record ‘RESTR - Restriction NIP - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction in rank EPD - Extra duties
CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
Docket No, MD13-01253
TYPES OF DOCUMENTS SUBMITTED/REVIEWED
Related to Military Service:
DD 214: K Service/Medical Record: Dd Other Records: CI
Related to Post-Service Period: . .
Employment: CI Finances: oO Education/Training: C1
Health/Medical Records: [] Rehabilitation/Freatment: ([] Crimina! Records: im
Personal Documentation: ([] Community Service: UC] References: C]..
Department of VA letter: [] Other Documentation: [_]
Additional Statements:
From Applicant: oO From/To Representation: [_] Fron/To Congress member: O

PERTINENT REGULATION/LAW

A. Paragraph 6210, MESCONDUCT, 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.

Key: NEFIR - Not found in record RESTR - Restriction NIP ~ Nonjudicial punishment SCM - Summary court-martial .
SPCM - Special court-martial FOP - Forfeiture of pay BIR - Reduction im rank EPD - Extra duties
_ CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
Docket No. MD13-01253 -

 

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

APPLICANT’S ISSUES

The Applicant secks to reenlist.

The Applicant seeks Department of Veterans Affairs (VA) benefits.
The Applicant contends his personal problems led to his misconduct.
The Applicant contends his in-service conduct warrants an upgrade.

PYLE

DECISION
Date: 20131204 DOCUMENTARY REVIEW Location: WASHINGTON D.C. _ Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 governmental affairs unless there is substantial credible evidence to rebut the presumpticn, to
include evidence submitted by the Applicant. The Applicant’s record of service included two 6105 counseling warnings, two
nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMD): Article 86 {Absence without
leave, 20101003 ~ 20101115, 43 days), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 111
(Drunken or reckless operation of vehicle, aircraft, or vessel, BAC of .091), and one summary court-martial (SCM) for
violation of the UCMJ: Article 86 (Absence without leave, 20091019 - 20091112, 24 days). Based on the offenses committed
by the Applicant, his command administratively processed him for separation. The NDRB did not have the Applicaat’s
administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified
counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority
review. However, the Applicant has a separation code of HKAI on his DD Form 214, which indicates he waived his

_ administrative board.

Issue 1: (Nondecisional) The Applicant seeks to reenlist. Since the NDRB has ne 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 Board for Correction of Naval Records can make changes to reenlistment codes. Additionally, the
NDRBB 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.

Issue 2: (Nondecisional) The Applicant seeks VA benefits and submitted a letter that was sent to the VA from his U.S.
Senator. 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.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANT ED. The Applicant contends his personal problems led to
his misconduct. The Applicant submitted a detailed letter explaining the reasons behind his misconduct. His DD Form 293
statement does not match his service record, specifically, the Applicant contends he passed a Breathalyzer test. The record
clearly shows the Applicant’s first misconduct resulted in being found guilty of violating Article 111 where he had a BAC level
of .091. The record further shows the Applicant waived his rights to trial by court-martial and an administrative separation
board, If the Applicant felt there were mitigating circumstances to his misconduct, it was his obligation to contest those charges
at the time they were made. During a trial or administrative separation board, he would have had the opportunity to bring forth
any mitigating circumstances. While the Applicant may feel that his family difficulties were 2 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, demonstrating he was unsuitable for further service. Relief denied.
. a a

- Decket No. MD13-01253 |
Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his in-service conduct, which included
three deployments, warrants an upgrade. Based 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. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record
entries, and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded ;
characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for
separation shall remain MISCONDUCT. The Applicant remains eligible for a personal appearance hearing for 2 period of
fifteen years from the date of his discharge. The Applicant is directed to the Addendum for additional information.
7 — Docket No. MD13-01253

ADDENDUM: Ivformation for the Applicant

Complaint Procedures: lf you believe the decision in your cas¢ 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 metits 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 eligibie 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 thig discharge. Representation at a personal appearance hearing is

recommended but not required. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to
provide guidance to former service members in their efforts to obtain a discharge upgrade. Ifa former member has been discharged for more than 15

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement
ot 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. .

Emplayment/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 ne jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or atly ‘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 cither 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 a0 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 2 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; mattiage and children’s birth certificates (Gif 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 cach
discharge is reviewed by the Boardon 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 (BCDY. Because relevant and traterial 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 NDR&B 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 Kennoo Strect SE Rm 309

Washington Navy Yard DC 20374-5023