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USMC | DRB | 2013_Marine | MD1301371
Original file (MD1301371.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130620
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to: ADJUSTMENT DISORDER

Summary of Service

Prior Service:
 Inactive:         USMCR (DEP)       20010713 - 20011104     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20011105     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20040617      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 34
MOS: 3951
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 20020917 :      Article (Absence without leave - morning formation )
          Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Knowingly violate MCO P1020.34F by wearing an earring
         Specification 2: Knowingly violate R.O. 1050 by entering Tijuana without proper authority
         Article 134 (General A rticle - dishonorably failing to pay debt)
          Awarded: CCU 30 days Suspended: [Extracted from previous decisional document]

- 20031211 :      Article (Absence without leave , 0615-1005, 20031031)
         Awarded: Suspended: NFIR [Extracted from previous decisional document]

SCM:

- 20030613 :      Article (Absence without leave - going from appointed place of watch)
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Disobeying an order from GYSGT
         Specification 2: Dereliction of duty
         Sentence:

SPCM:    CC:





Retention Warning Counseling:

- 20020506 :      For failure to go to your appointed place of duty. On 20020420 you were late for your scheduled firewatch at 1400 and you failed to report for your firewatch at 0200. Accountability is paramount to the Marine Corps mission ; you may not come and go as you please. Rules and regulations are made for a reason, to ensure good order and discipline. This type of behavior is unacceptable and will not be tolerated.

- 20020910 :      For being late to formations and musters on several occasions. You have been informally counseled on several occasions and remediation efforts have not been effective. You have further violated the UCMJ by disobeying orders by wearing earrings, entering the country of Mexico without proper permission , and sleeping in your workspace vice accomplishing your section ’ s mission. Additionally , your personal finances are in disarray. You owe another Marine money for phone charges that you accumulated on their account, and you damaged the car speakers of yet another Marine. Your performance is not indicative of the traits normally associated with a Marine. Further violations and disruptive behavior will not be tolerated.

- 20030305 :       For negligently discharging your weapon without competent authority nor in self-defense and exercising poor judgment in discharging your weapon. While assigned to the guard force, you were directly responsible for negligently discharging your weapon. As a member of the guard force, one of your primary responsibilities is to be thoroughly familiar with rules of engagement. Prior to assuming post, you received a class on rules of engagement as well as how to stand your post. Your failure to apply the rules of engagement guidelines or seek assistance from the Sergeant of the Guard had a direct impact on you negligently discharging your weapon.

NDRB Documentary Review Conducted (date):        20091022
NDRB Documentary Review Docket Number:   MD08-01942
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 was too harsh for his misconduct of record.
2.       The Applicant contends his discharge does not accurately reflect his character of service due to mitigating circumstances.
3.        The Applicant contends his post-service conduct is worthy of consideration for an upgrade.

Decision

 Date: 20 1 4 0325                    
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 86 ( Absence without leave, 2 specifications ), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, 1 specification) , Article 92 (Failure to obey order or regulation, 1 specification) , and Article 134 ( General A rticle - dishonorably failing to pay debt, 1 specification ) , and for of the UCMJ: Article 86 ( Absence without leave, 1 specification) and Article 92 (Failure to obey order or regulation, 2 specifications). 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 Applicant later waived his administrative board per a letter dated 12 March 2004.

: (Decisional) ( ) . The Applicant contends his discharge was too harsh for his misconduct of record. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records and the Applicant’s personal testimony, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge does not accurately reflect his character of service due to mitigating circumstances. There is evidence in the Applicant’s medical record that on 10 December 2003 , he did seek medical treatment for “feeling tense, stressed, uptight, and on edge in the workplace” and tested on th e borderline depressive range. The Applicant’s record shows he did state that he had t rouble sleeping but no disorder was attributed to his inability to get adequate sleep. There was also documentation of the Applicant losing his brother by suicide , and he stated that he did not have any suicide ideation s at that time. Except for this one visit to medical, t he Applicant did not provide any evidence to indicate he attempted to u se the numerous services available for service members who undergo personal problems during their enlistment s such as the Navy Chaplain, Me ntal Health professionals, Navy/Marine Corps Relief Society, Family Advocacy Programs, or even the Red Cross prior to the misconduct. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned. The Applicant did not show any evidence stating that he was ever diagnosed with any disorders that would mitigate his behavior . Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of consideration for an upgrade . The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Except for two character reference letters given to the NDRB during his personal hearing , he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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. W ithout additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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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