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USMC | DRB | 2013_Marine | MD1301473
Original file (MD1301473.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130731
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)       20020912 - 20030803     Active:   20030804 - 20070418 HON

Period of Service Under Review:
Date of Current Enlistment: 20070419     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100401      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 13 D a y ( s )
Education Level:        AFQT: 46
MOS: 1833
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle MUC GWOTEM NDSM

Periods of UA :

NJP:

- 20081106 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20100128 :       Article (False official statement)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

SCM:

- 20091002 :       Art icle (Larceny and wrongful appropriation , 14 specifications )
         Sentence : (20091002-20091025, 24 days)

SPCM:    CC:

CIVIL ARREST:

- 20081106 :       Charges: DWI

Retention Warning Counseling :

- 20081106 :       For you have displayed a pattern of failing to follow both written and verbal lawful orders. You are counseled this date concerning your demonstrated shortfalls in the military attributes of force, judgment, reliability, obedience and self- discipline as evidenced by your being arrested by local authorities for DWI with a BAC of .08.
        
- 20081114 :       For you have displayed a pattern of failing to follow both written and verbal lawful orders. You are counseled this date concerning your demonstrated shortfalls in the military attributes of force, judgment, reliability, obedience and self- discipline as evidenced by your breaking restriction by using a cell phone and violating the Battalion restriction policy.

- 20090707 :       For you took a sign from the doctor’s office in Jacksonville, NC and placed the sign in fro nt of Cpl N_’s house. Your P latoon Commander and Platoon Sergeant had to speak to the doctor’s office so no charges were filed. You are now paying restitution of $961.00. Also on or about 20090616 you were questioned about a relationship you have been having with C_ M_. On 20090616 you stated you have been intimate. Then on 20090625 when asked again in the Company Commander ’ s office you stated that she was only a friend and that you both were never intimate. Eventually after thinking about it for a while you decided to tell the truth and admitted to l ying.

- 20100128 :       For Battalion NJP, Article 107 on or about 20100111 you gave a false official statement to a SNCO when you told them you did not know the whereabouts of LCpl K_. Article 92, on or about 20100110 you violated your Force Preservation Program by changing your libo plan without approval from your mentor and drinking alcohol. Article 92, on or about 20100110 you did in fact fail to report the arrest of LCpl K _ to your chain of command.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ ”
        
The NDRB will recommend to the Commandant of the Marine Corps , MMSB-13, that the DD 214 be corrected as appropriate.
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 was based on a single incident of misconduct in six years of service.
2.       The Applicant contends he suffered from Adjustment D isorder, depression, and anxiety after returning from Iraq.
3.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date : 20 1 4 0205            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 in his second enlistment included 6105 counseling warnings, nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation; 2 specifications ) and Article 107 ( False official statements; 1 specification ) , and for of the UCMJ: Article 121 ( Larceny; 14 specifications ) , and a civilian arrest for driving while intoxicated (DWI). 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 .

: (Decisional) ( ) . The Applicant contends his discharge wa s based on a single incident of misconduct in six years of service. The Applicant received an Honorable discharge for his first enlistment from August 2003 to April 2007. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he was arrested for D WI and found guilty at NJP for failing to obey orders . The Applicant was reduced in grade from Sergeant to Corporal. The Applicant was then charged with 14 specifications of larceny and found guilty at a S ummary C ourt- M artial. The Applicant submitted a letter from a Marine who stated that the Applicant had permission to use his credit card and should not have been found guilty of the 14 specifications of larceny. However, the Applicant pled guilty to those charges at the Summary Court-Martial. The Applicant was reduced from Corporal to Private. The Applicant was then charged with failing to obey orders and false official statements and found guilty at NJP. Also in his second enlistment, the Applicant received four retention warnings. The Applicant’s record refutes his contention that he was administratively separated for an isolated incident of misconduct. His record clearly supports the pattern of misconduct narrative reason for discharge and the Under Other Than Honorable Conditions characterization of service. Relief denied.

: (Decisional) ( ) . The Applicant contends he suffered from Adjustment D isorder, depression, and anxiety after returning from Iraq. The Applicant’s record shows he deployed to Iraq in support of combat operations during Operation IRAQI FREEDOM in 2005. In January 2008, t he Applicant was diagnosed while on recruiting duty with A djustment D isorder and depression. However, the record indicates his A djustment D isorder and depression were attributed to the high stresses associated with his assignment as a recruiter. The Applicant was relieved from his recruiting assignment in April 2008 and returned to his primary MOS of 1 833. In November 2008, the Applicant began a pattern of misconduct with a civilian arrest for DUI , two NJPs, and a Summary Court-Martial . In March 2010, the Applicant was screened for symptoms of P ost- T raumatic S tress D isorder (PTSD) and T raumatic B rain I njury (TBI) , but no evidence of PTSD/TBI was indicated. The NDRB determined the Applicant was accountable for his conduct and properly held responsible by his command. The NDRB determined his Adjustment Disorder, depression, and anxiety did not mitigate his misconduct . Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his 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 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 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 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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