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USMC | DRB | 2014_Marine | MD1400205
Original file (MD1400205.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131114
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)       20060201 - 20060709     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060710     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20100714      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 05 D a y ( s )
Education Level:        AFQT: 32
MOS: 0311
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

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

Periods of UA / CONF :

NJP:

- 20080728 :       Article (Failure to obey order or regulation)
         Article (False official statement)
         Article 128 (Assault)
         Awarded: Suspended:

- 20080919 :      Article (Failure to obey order or regulation)
         Article 134 (General A rticle, break said restriction)
         Awarded: Suspended:

- 20090430 :       Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20100325 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20080507 :       For your recent arrest on 20080511 by the Jacksonville Police Department for urinating in public, to wit: Walmart parking lot.

- 20080818 :       For your recent NJP received on 20080814 for violation of UCMJ Article s 92, 107 , and 128.


- 20080922 :       For your recent NJP received on 20080922 for violation of UCMJ Article 92.

- 20090331 :       For failure to obey a lawful order and to comply with established Marine Corps Uniform Regulations. On 20090326 you were informed that your haircut failed to meet regulations in that your hair extended in an unsightly manner below your cover. You then failed t o correct the deficiency and were ordered by your Platoon Sgt, SSgt M_, to have an appropriate haircut NLT 0600, 20090330, which you failed to comply with. Your failure to obey lawful orders from your superiors and complete disregard for regulation s display a lack of maturity, poor judgment, and were a direct violation of our Corps values and the UCMJ.

- 20090430 :       For your recent NJP held on 20090430 for a violation of UCMJ Article 92. You were drinking under the age of 21 for the third time.

- 20100326 :       For your pattern of misconduct, demonstrated by NJPs on 20080814, 20080922, 20090430, 20100325

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 characterization is inequitable due to lingering in-service injuries and the post-service limitations they impose upon his potential for long - term employment.
2.       The Applicant contends youth and immaturity were contributing factors in his misconduct.
3.       The Applicant contends his discharge should be based on his otherwise exemplary four years of service in combat areas .
4.       The Applicant contends his discharge is inequitable , because his misconduct occurred after his deployment to Iraq .

Decision

Date: 20 1 4 0605            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 NDRB 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 total record of service included 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation , four specific ation s), Article 107 ( False official statement , one specific ation), Article 128 ( Assault , one specific ation), and Article 134 ( General A rticle , one specification ). Based on the offenses committed by the Applicant, command twice administratively processed for separation. The Applicant’s record of service shows that the first time the Applicant was processed for administrative separation was due to a pattern of misconduct in May 2009. The result of his first administrative processing was ultimately that he would be retained and be allowed to separate honorably if he did not commit additional misconduct. The Applicant then proceeded to commit two additional inciden ts o f misconduct. When notified of a dministrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Separation Authority approved his discharge Under Other Than Honorable Conditions for a Pattern of Misconduct on 02 July 2010.

: (Nondecisional) The Applicant contends his discharge characterization is inequitable due to his lingering in-service injuries and the post-service limitations they impose upon his potential for long - term employment. 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. 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.

: (Decisional) ( ) . The Applicant contends youth and immaturity were contributing factors in 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 servicemembers 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 his discharge should be based upon his otherwise exemplary four years of service in combat areas . The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. The Applicant’s record of service includes four NJPs and six 6105 counseling warnings in addition to two separate administrative separation packages. The second administrative separation package was initiated on 08 April 2010 and was approved by the Separation Authority ( Commanding General, 2d Marine Division ) on 02 July 2010.

The record of evidence also clearly shows the Applicant waived his rights to trial by court-martial for each nonjudicial punishment and his administrative separation board s . 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 or administrative separation board, 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. Based on the Applicant’s record of service, The NDRB determined the Applicant had been given and squandered ample rehabilitative opportunities by his command. His conduct involved multiple acts and omissions that constituted a significant departure from the conduct expected of members of the Marine Corps , and the awarded characterization of service was warranted. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his discharge is inequitable , because his misconduct occurred after his deployment to Iraq . A combat deployment does not mitigate a Marine’s repeated misconduct. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable or General discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment s , such as the Navy Chaplain or Medical or Mental Health professionals . The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted. 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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