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USMC | DRB | 2013_Marine | MD1301504
Original file (MD1301504.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130713
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)       20010116 - 20010710     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010711     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060710      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 96
MOS: 2311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle (2)

Periods of CONF: NONE

NJP:

- 20020718 :       Article (Absence without leave)
         Specification 1: On or about 1130, 20020709, fail to go, at the time prescribed, to his appointed place of duty, to wit: Barracks Support Formation.
         Specification 2: On or about 1 4 30, 20020709, fail to go, at the time prescribed, to his appointed place of duty, to wit: Barracks Support Formation .
         Specification 3 : On or about 0600 , 200207 12 , fail to go, at the time prescribed, to his appointed place of duty, to wit: Barracks Support Formation.
          Specification 4 : On or about 0900 , 200207 12 , fail to go, at the time prescribed, to his appointed place of duty, to wit: Barracks Support Formation .
         Awarded: RIR Suspended:

- 20031014 :      Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ; disrespectful and displayed total disregard for authority of a Marine NCO.)
         Article (Failure to obey order or regulation)
         Specification 1: Was instructed to run back to the bleachers, but ignored the order and continued to walk.
         Specification 2: While being questioned by a Cpl, he was corrected to stand at parade rest and refused to do so by stating “Fxxx you . ”
         Article (Assault )
         Specification 1: A ssaulted a Marine Cpl by grabbing him by the collar of the blouse .
         Specification 2: A ttempting to hit a Marine Cpl while being restrained on the ground.
          Awarded: Suspended:

SCM:     SPCM:    CC:


Retention Warning Counseling :

- 20020513 :      For failure to be responsive to performance counseling provided by your SNCOIC to assist you in correcting your deficiencies. Specifically, unauthorized absences, failure to complete academic work, and failure to meet minimum academic standards due to lack of motivation.

- 20020619 :      For your academic drop from the AVA-I course of instruction.
                 
- 20020909 :       For Article 92 (Failure to obey an order or regulation) MCO P1020.34, chap 1, para 7a(2), Marine C orps Uniform Regulations specifically for having unauthorized body piercing ornamentation affixed through skin.

- 20030811 :      For Article 92 (Failure to obey order or regulation) violated BEQ regulations by having a guest of opposite sex in your barracks quarters after hours, and not si g ned in with the Duty.

- 20031001 :       For Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey order or regulation), and 128 (Assault). SNM was disrespectful and showed disregard for authority of a Marine NCO. While in a training area, SNM was instructed to run back to the bleachers but ignored the order and continued to walk. While being questioned by a CPL, he was directed to stand at parade res t and refused to do so by stating “Fxxx you . ”

- 200 60111 : For failure to conform to height/weight standards as prescribed in MCO P6100.12. You current weight is 220 lbs with a body fat of 27%; your maximum weight for your height is 181 lbs and maximum body fat of 18% based on your doc umented Physical Fitness Test.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .
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 wants to be eligible for Department of Veterans Affairs (VA) education benefits.
2.       The Applicant contends his below - average C onduct markings were unjustified.
3.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date : 20 1 4 0212            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 86 ( Absence without leave , 4 specifications ), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ), Article 92 (Failure to obey order or regulation , 2 specifications), and Article 128 (Assault , 2 specifications) . Despite his misconduct, t he Applicant was retained on active service until the completion of his required active service date on 10 July 2006 .

: (Nondecisional) The Applicant wants an upgrade to be eligible for VA education benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant contends his below-average Conduct markings were unjustified. The Applicant’s record shows he was awarded below - average C onduct markings on two occasions when he was reduced in grade due to NJPs for violations of the UCMJ. The Applicant also received below - average C onduct markings that were justified by counseling entries in his record for having an unauthorized body piercing ornamentation in violation of Article 92, for having an unauthorized female guest in his BEQ room in violation of Article 92, for failure to maintain Marine Corps standards for weight and body fat composition , twice for academic failures, and twice for non-recommendation for promotion. In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Therefore, characterization of service will be Hono rable for Marines with average p roficiency mark s of 3.0 or higher and average c onduct marks of 4.0 or higher. The Applicant completed his obligated service and his overall marks for proficiency and conduct were 4. 1 and 3.9 , respectively. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the Applicant’s characterization of service. 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 two 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 th e characterization of service received was proper and equitable. 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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