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USMC | DRB | 2014_Marine | MD1400211
Original file (MD1400211.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:         N FIR              Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050104     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20060505      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 02 D a y ( s )
Education Level:        AFQT: 45
MOS: 0151
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      LoA

Period of CONF :

NJP:

- 20050901 :       Article (Unauthorized absence , 2 specifications )
         Article (Failure to obey order or regulation
         Awarded: Suspended: Vacated 20050920

- 20060224 :      Article (Absence without leave , 5 specifications )
         Article (Failure to obey order or regulation)
         Awarded: Suspended: Vacated 20060320

- 20060412 :       Article (Absence without leave , 3 specifications )
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
          Article 92 (Failure to obey order or regulation)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20050901 :       For disrespect toward a commissioned officer at Portsmouth Naval Hospital on 20050806

- 20050901 :       For underage drinking on 20050806

- 20050921 :       For insubordinate conduct on 20050915. You were disrespectful to Sgt T_, Cpl S_, Cpl C_, and Mgysgt W_ by the way of body language and well as verbal comment. You also failed to obey orders and regulation by smoking in your barracks room an d burning candles and incense.

- 20051027 :       For on 20051003 you were found guilty at Portsmouth, Virginia General District Court of failure to stop at the scene of an accident, driving with no driver’s license, and operating an uninsured vehicle. You were fined a total of $283.00.

- 20051108 :       For falling asleep in class and not completing homework assignment resulting in your drop from IMPACT Course.

- 20060307 :       For violation of Article 86, unauthorized absence, on 5 separate occasions, 20060202 through 20060205 and 20060222. Your tardiness and unauthorized absence will not be tolerated. You also violated Article 92, failure obey order and regulation. On 20060222, you were found staying in someone else’s BEQ room overnigh t after permitted guest hours.

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 use the GI Bill and receive Department of Veterans Affairs ( VA ) benefits.
2.       The Applicant seeks better job opportunities.
 3 .       The Applicant contends others received less or no punishment for more serious offenses .
4 .       The Applicant contends he was haz ed.
5 .       The Applicant contends he never received a P age 11 or retention warning.
 6 .       The Applicant contends his command treated him unfairly.
Decision

 Date: 20140605            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 6105 counseling warnings and for o f the Uniform Code of Military Justice (UCMJ): Arti cle 86 (Unauthorized absence, 10 specifications ), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), and Article 92 (Failure to obey order or regulation, 3 specifications). Based on th e offense s committed by the Applicant, command administratively processed for separation. 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 .

: (Nondecisional) The Applicant seeks to use the GI Bill and receive VA 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.

Issue 2: (Nondecisional) The Applicant seeks better job 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.
Issue 3: (Decisional) ( ) . The Applicant contends others received less or no punishment for more serious offenses. While other members of his unit may have been charged with the same or similar offenses, each case must stand on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.




Issue 4: (Decisional) ( ) . The Applicant contends he was haz ed. 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 the contention that he was hazed or that he should not be held accountable for his actions. The record shows the Applicant waived his right to a trial by court-martial, was found guilty at NJP for his misconduct, and he waived his right to an administrative board where he would have had the opportunity to bring forth any mitigating factors. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

Issue 5: (Decisional) ( ) . The Applicant contends he never received a P age 11 or retention warning. The record clearly shows the Applicant received no less than six written retention warnings offering him assistance, recommending corrective action, and warning him of administrative separation if he failed to take corrective action. Therefore, the NDRB determined the Applicant’s contention to be without merit. Relief denied.

Issue 6: (Decisional) ( ) . The Applicant contends his command treated him unfairly . A review of the Applicant’s record of service shows that, contrary to his contention that he was treated unfairly, his command gave him multiple opportunities to correct his poor behavior , to include six counseling warnings. The record shows the Applicant received suspended sentences for his first two NJPs, but his continued failure to abide by the rules and regulations led to the vacation of the suspended sentences. Further, the record shows the Applicant was given six retention warnings to correct his behavior. The Commanding Officer, Expeditionary Warfare Training Group, Atlantic letter dated 25 April 2006 state d , “[The Applicant] has been given multiple opportunities to improve himself, but has failed to do so. His chain of command has tried to bring him along with endless informal and formal [ counselings ] with no results. It has been a daily challenge for the N1 Department staff as well as the Sergeant Major to inculcate in him a sense of responsibility. The amount of hours spent on this Marine [has] failed to make a difference due to his lack of respect for authority and his blatant disregard for the rules. ” The record demonstrates the Applicant had a clear pattern of misconduct and his blatant disregard for the rules and regulations constitute d a significant departure from the conduct expected of members of the Naval Service. The NDRB determined his command gave him more opportunities to correct his behavior than most Marine commands, and his discharge was warranted, 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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