Search Decisions

Decision Text

USMC | DRB | 2013_Marine | MD1301512
Original file (MD1301512.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130717
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)       20040609 - 20050619     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050620     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20070521      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 0151
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of CONF :

NJP:

- 200 51213 :      Article ( Malingering, did on or about 20051121 to on or about 20051201 for the purpose of avoiding service as an enlisted person, feign heart illness)
         Awarded: Suspended:

- 20070405 :       Article (Absence without leave)
         Specification 1: Did on or about 070402, at or about 0515, absent himself from his appointed place of duty, that being PT, and did remain so absent until 070402 at or about 0730.
         Specification 2: Did on or about 07040 3 , at or about 0 730 , absent himself from his appointed place of duty, that being the S-1 shop, and did remain so absent until 070403 at or about 0924 .
         Article (Making, drawing, or uttering check, draft, or order without sufficient funds; between the dates 20070125 to 20070213 knowingly write 29 worthless checks to AAFES in the total amount of $ 7 , 519.15 )
         Awarded: Suspended: (vacated on 20070502)

- 20070503 :      Article (Restriction breaking)
         Specification 1: Did on or about 20070502, break his restriction, to wit broke restriction by going to the Shopette.
         Specification 2 : Did on or about 20070502, break his restriction, to wit broke restriction by taking a cab to the Shopette while he was on restriction .
         Awarded: Suspended:

SCM:     SPCM:    CC:



Retention Warning Counseling :

- 20051213 :       For Article 115 (Malingering; by feigning heart illness to avoid training.)

- 20070125 :       For Article 92 (Failure to obey order or regulation, observed numerous times operating a vehicle that is not registered nor insured. You had previously received a direct order from your N C OIC not to operated said vehicle. You were verbally counseled in December 06 regarding in the same viola tion of the same order. )

- 20070 321 :      For deficiencies and specifically your failure to follow the orders of those appointed over you.

- 20070405 :      For violation Article 86 (Absence without leave) and Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds).

 - 20070504 :      For administrative separation due to pattern of misconduct.

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 youth and immaturity mitigate his misconduct.
2.       The Applicant contends he only wrote 3 bad checks , and the other 26 were written after his checkbook was stolen.
3.       The Applicant contends his last nonjudicial punishment ( NJP ) was unjust , because he was given permission by an NCO to break restriction.
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 , 2 specifications ), Article 115 ( Malingering , 1 specification ), Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds , 29 specifications totaling $7 , 519.15), and Article 134 ( General A rticle, breaking restriction , 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 waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends youth and immaturity mitigate 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 service members 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 he only wrote 3 bad checks , and the other 26 were written after his checkbook was stolen. The Applicant was charged with violation of Article 123a and was found guilty at NJP of having written 29 bad checks between 25 January 2007 and 13 February 2007 to the Ft. Leonard Wood Exchange for a total amount of $7 , 519.15. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and accepted NJP . 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. During a trial , he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention , therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.
: (Decisional) ( ) . The Applicant contends his last NJP was unjust , because he was given permission by an NCO to break restriction. If the Applicant felt that he was innocent of the charges against him, he should have brought it up at NJP. The Applicant’s record shows he waived his right to trial by court-martial and accepted NJP. The Applicant waived his right to submit a written statement to rebut his NJP and waived his right to appeal his NJP to the next higher commander in his chain of command. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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

Similar Decisions

  • USMC | DRB | 2011_Marine | MD1100213

    Original file (MD1100213.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of...

  • NAVY | DRB | 2009_Navy | ND0901766

    Original file (ND0901766.rtf) Auto-classification: Denied

    The NDRB determined the Applicant met the requirements for separation for misconduct – pattern of misconduct and the awarded characterization of service was warranted.Issue 3: (Decisional) () . ” 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. Additionally, the NDRB does not have the authority to change a...

  • USMC | DRB | 2012_Marine | MD1201167

    Original file (MD1201167.rtf) Auto-classification: Denied

    Misconduct and unsatisfactory performance by failing to properly manage finances Types of Documents Submitted/reviewedRelated 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...

  • NAVY | DRB | 2004_Navy | ND04-00153

    Original file (ND04-00153.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to entry level separation or uncharacterized. 970214: NMCCCA: The findings of guilty and sentence as approved on review are affirmed.970711: COMA: Request for appeal denied.970723: SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed. The Applicant states that he had only this one negative action in “48+ months.” Despite a servicemember’s prior record...

  • NAVY | DRB | 2005_Navy | ND0500279

    Original file (ND0500279.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 960307: BUPERS directed the Applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. The Commanding Officer stated in his recommendation that, “[a]lthough the offenses for which she appeared at mast are considered to be serious, she has not incurred any additional misconduct, and the primary reason for...

  • USMC | DRB | 2014_Marine | MD1400360

    Original file (MD1400360.rtf) Auto-classification: Denied

    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. ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 1999_Marine | MD99-00930

    Original file (MD99-00930.rtf) Auto-classification: Denied

    MD99-00930 Applicant’s Request The application for discharge review, received 990630, requested that the characterization of service on the discharge be changed to honorable. History Iwas accused and convicted, at Office Hours, of Article 123a - Making, drawing, or uttering check, draft, or order without sufficient funds.While serving my punishment two (2) days later, I was charged with Article 90 - Willfully disobeying an order. Not appealed.910919: NJP for violation of UCMJ, Article 90:...

  • USMC | DRB | 2014_Marine | MD1400297

    Original file (MD1400297.rtf) Auto-classification: Denied

    Relief deniedSummary: 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 .Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. ” Additional Reviews : After a document review has been conducted, former members...

  • NAVY | DRB | 2015_Navy | ND1500887

    Original file (ND1500887.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT. ” Additional Reviews : After a...

  • USMC | DRB | 2002_Marine | MD02-01276

    Original file (MD02-01276.rtf) Auto-classification: Denied

    MD02-01276 Applicant’s Request The application for discharge review, received 020906, requested that the characterization of service on the discharge be changed to general/under honorable conditions. PART I - APPLICANT’S ISSUES AND DOCUMENTATION After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).A characterization of service of under other than honorable conditions...