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USMC | DRB | 2014_Marine | MD1400276
Original file (MD1400276.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131212
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)       20040218 - 20041012     Active:            20041013 - 20081023

Period of Service Under Review:
Date of Current Enlistment: 20081024     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20111216      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 23 D a y ( s )
Education Level:        AFQT: 48
MOS: 1391
Fitness R eports:

Awards and Decorations (per DD 214):      Rifle (3) Pistol (2) LoA (2) CoA CoC (2) MM

Periods of UA :

NJP:

- 20110721 :       Article (Forgery, on or about 20110624, altered his convalescent leave from 3 to 13 days)
         Awarded: 30 days Suspended: 20 days

- 20111109 :      Article (Larceny, on or about 20111002, was arrested by Morehead City Police Department for stealing clothing from Sears)
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 20101105 :       Art icle 81 (Conspiracy, on or about 20091218 to 20100102, conspire with LCpl B_ to commit an offense under the UCMJ, to wit: fraud of the U.S. Government for a value of $4,177.00 and in order to effect the object of the said Sgt and LCpl, did create fraudulent weight vouchers)
         Art icle (False official statement, on or about 20100204, with the intent to decive, make to Investigator O_ an official statement to wit: “ W e did not add extra weight or tamper with the weighing process in any way,” which statement was totally false, and was then known by the said Sergeant to be so false)
         Art icle 132 (Frauds against the United States, did for the purpose of obtaining the payment of a claim against the United States in the amount of $3,800, did, on or about 20090919 and 20090920, make certain paper, to wit: f r aud u lent weight vouchers, which said paper, Sgt B_ then knew, contained a statement that was fraudulent)
         Sentence : 60 days (20101105-20110119, 76 days)


Retention Warning Counseling :

- 20110721 :       For forgery, on 20110721, you received a N on- J udicial P unishment for the following violation: Specifically on or about 20110624, altered your convalescent leave from 3 to 13 days.

- 20111031 :       For your assignment to the Marine Corps B ody Composition Program .

- 20111109 :       For larceny. On 20111109, you received a Non - Judicial Punishment for the following violation: Larceny, specifically, on or about 20111002, you were arrested by Morehead City Police Department for stealing clothing from Sears.

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 he was on medication and was innocent of shoplifting from Sears.
2.       The Applicant contends his in-service conduct warrants an upgrade.
3.       The Applicant contends his post-service conduct warrants an upgrade.
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 in his second enlistment included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 121 (Larceny, on or about 20111002, was arrested by Morehead City Police Department for stealing clothing from Sears) and Article 123 (Forgery, on or about 20110624, altered his convalescent leave from 3 to 13 days) , and for of the UCMJ: Article 81 (Conspiracy, on or about 20091218 to 20100102, conspire with LCpl B_ to commit and offense under the UCMJ, to wit: fraud of the U.S. Government for a value of $4,177.00 and in order to effect the object of the said Sgt and LCpl, did create fraudulent weight vouchers), Article 107 (False official statement, on or about 20100204, with the intent to decive, make to Investigator O_ an official statement to wit: “ W e did not add extra weight or tamper with the weighing process in any way,” which statement was totally false, and was then known by the said Sergeant to be so false) , and Article 132 (Frauds against the United States, did for the purpose of obtaining the payment of a claim against the United States in the amount of $3,800, did, on or about 20090919 and 20090920, make certain paper, to wit: f r aud u lent weight vouchers, which said paper, Sgt B_ then knew, contained a statement that was fraudulent). 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 rights to consult with a qualified counsel and submit a written statement but right to request an administrative board .

: (Decisional) ( ) . The Applicant contends he was on medication and was innocent of shoplifting from Sears. 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. The Applicant was found guilty at NJP of violating UCMJ Article 121 (Larceny) after he was arrested by the Morehead City Police Department for stealing clothes from Sears. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that it was an honest mistake. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade. The Applicant received an Honorable characterization for his first enlistment from October 2004 to October 2008. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he received three retention warnings, was found guilty of UCMJ violations at two NJPs, and was found guilty of additional UCMJ violations at a Special Court-Martial. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.



: (Decisional) ( ) . The The Applicant contends his post-service conduct warrants 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 , an employment award, and three 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. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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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