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USMC | DRB | 2013_Marine | MD1301694
Original file (MD1301694.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20130808
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)       20071231 - 20081116     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20081117     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20111020      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 20 D a y ( s )
Education Level:        AFQT: 38
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA : 20091125 - 20091130 , 5 days

NJP:

- 20 091214 :      Article (Absence without leave, 20091125 to 20091130, 5 days)
         Article 92 (Failure to obey order or regulation , failed to report to his medical appointment and proceeded to go on liberty )
         Article ( False official statements, made a false official statement to his SNCOIC about why he was late returning from leave )
         Awarded: Suspended:

- 20110715 :       Article (Absence without leave, failure to go to appointed place of duty, ADNCO, due to his poor judgment of breaking the rules of his high risk assignment)
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, to wit: SNM was extremely disrespectful and belligerent to GySgt D_ during the administration of his A rticle 31 rights and notification of charges pending against him)
         Article (Failure to obey order to regulation, failed to obey the rules of his high risk assignment by travelling out of state limits)
         Awarded: Suspended: [vacated on 20110802]

- 20110805 :      Article 92 (Failure to ob ey order or regulation , failed to have an NCO escort while on restriction)
         Article (General A rticle, breaking restriction, to wit: SNM was seen in a POV with PFC J_ coming on to base, without the proper authority being notified)
         Awarded: Suspended: [vacated on 20110919]

- 2011 091 9        Article 92 (Failure to obey order or regulation, failed to obey the rules of his high risk assignment to remain within 25 miles of MCAS Cherry Point )
         Awarded: FOP RESTR EPD Suspended: NONE

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20091215 :       For your recent NJP for violating Articles 86, 92, and 107.

- 20100315 :       For your disorderly conduct being a United States Marine by wearing jewelry in an inappropriate manner in your ear.

- 201005 19 :       For being UA for fire watch on 20100515.

- 20100526 :       For your recent Case Review Committee that took place on 20100525 , which resulted in substantiated (mutual) spouse abuse, Level I.
- 20100729 :       For your unsatisfactory performance while assigned to the Marine Corps B ody Composition Program . Due to insufficient effort, you have not met your weight/body composition reduction goals.

- 2010 0812 :       For violation of Article 86 and Article 91. Specifically, failing to arrive at my appointed place of duty on time and failing to use proper customs and courtesies; furthermore, displaying a striking lack of tact and good judgment when addressed by a Staff Noncommissioned Officer.

- 20110715 :       For your unacceptable behavior that resulted in a reduction in rank during squadron NJP.

- 20110805 :       For your recent NJP for violating Article 92.

- 20110919 :       For your recent NJP for violating Article 92.

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 seeks to improve his employment opportunities.
 2.       The Applicant contends there were mitigating circumstances to his misconduct.
3.       The Applicant contends someone forged his signature on his promotion non-recommendation counseling.

Decision

Date: 20140312            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. The Applicant’s record of service included nine 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications ) , Article 91 (Insubordinate conduct toward warrant officer, noncommiss ioned officer, or petty officer),     Article 92 (Failure to obey order or regulation, 4 specifications), Article 107 (False official statements, made a false official statement to his SNCOIC why he was late returning from leave) , and Article 134 (General A rticle, breaking restriction ). Based on the offense s 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 .

: (Nondecisional) The Applicant seeks to improve his employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends there were mitigating circumstances to his misconduct. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board. If the Applicant felt there were mitigating factors that would absolve 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 mitigating factors. The Applicant submitted no evidence to support his contention s, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Furthermore, the record clearly demonstrates that the Applicant was given many chances to correct his behavior , yet the Applicant persistently demonstrated his inability or unwillingness to abide by Marine Corps orders and regulations. The NDRB determined the Applicant’s discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends someone forged his signature on his promotion non-recommendation counseling. The NDRB is not an investigative body . However, even if someone forged his signature on his promotion non-recommendation counseling, it would not amount to justification nor to a defense for the Applicant’s own repeated misconduct. The Applicant was found guilty at 4 NJPs and received 9 retention warnings in addition to multiple promotion non-recommendation counseling s. Therefore, the NDRB determined that any discrepancy with one of his promotion non-recommendation counseling s was immaterial to his separation. The NDRB determined his discharge was proper. 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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