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USMC | DRB | 2014_Marine | MD1400326
Original file (MD1400326.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20131217
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)       20020925 - 20030713     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20030714     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 2007071 3      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 0 0 D a y ( s )
Education Level:        AFQT: 36
MOS: 3531
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations (per DD 214):     Rifle Pistol MM

Periods of CONF :

NJP:

- 20051004 :      Article (Absence without leave , 2 specifications )
         Specification 1: From 0900-100 0 on 20050918, was absent from his appointed place of duty, which was DFAC-1
         Specification 2: W as absent from his appointed place of duty, which was DFAC-1
         Awarded: Suspended:

- 20070403 :      Article (Wrongful use, possession, etc. of controlled substances, THC)
         Awarded: Suspended:

- 20070604 :      Article (Failure to obey order or regulation)
         Article (Wrongful use, possession, etc. of controlled substances, THC 28 ng/mL )
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20041014 :      For the following deficiency: on 20041010, you were apprehended by Provost Marshal’s Office on MCAS New River for not having insurance on your POV. You have previously been detained at the main gate as well as counseled by your NCOs concerning your lack of insurance.

- 20051004 :      For the following deficiencies: Article 86 UCMJ, unauthorized absence. Specifically, on 20051004, the Motor Transport Company Commander found you guilty during NJP proceedings of unauthorized absence.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ 2003 07 14 ”
         “ 2007 07 13 ”
          “ ”
         “ GKA1 ”

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 that he initially received a DD 214 stating Honorable service only to be given another DD 214 after he was discharged stating Under Other Than Honorable Conditions.
2.       The Applicant contends he wrote a rebuttal to his administrative separation board, was assured he would receive an Honorable discharge, and would have stayed in to fight his Under Other Than Honorable Conditions discharge if he knew about it.
Decision

Date: 20 1 4 0702                  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 standards 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 92 ( Failure to obey order or regulation, 1 specification ), and Article 112a ( Wrongful use, possession, etc. of controlled substances, 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 rights to consult with a qualified counsel and request an administrative board , but he did exercise his right to submit a written statement .

: (Decisional) ( ) . The Applicant contends that he initially received a DD 214 stating Honorable service only to be given another DD 214 after he was discharged stating Under Other Than Honorable Conditions. The Applicant’s initial DD 214 stating Honorable for Completion of Required Active Service was issued in error. His correct DD 214 says Under Other Than Honorable Conditions for Misconduct. The mistake likely occurred in the administrative section , which often prepares DD 214s close to the end of enlistments before being notified by legal of misconduct discharge processing. A review of the records shows the Applicant was notified of administrative discharge processing for a Pattern of Misconduct and Misconduct (Drug Abuse), the Applicant acknowledged this in writing and elected to submit a written statement, and the Separation Authority, after considering the statement and the Applicant’s service record, ordered an Under Other Than Honorable Conditions discharge for a Pattern of Misconduct prior to the Applicant reaching the end of his active obligated service. Relief denied.
Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he wrote a rebuttal to his administrative separation board, was assured he would receive an Honorable discharge, and would have stayed in to fight his Under Other Than Honorable Conditions discharge if he knew about it. A review of the records shows that on 15 June 2007, the Applicant’s commanding officer notified the Applicant of administrative separation processing for a Pattern of Misconduct and Misconduct (Drug Abuse). The Applicant, in writing, acknowledged the separation proceedings and acknowledged that he could receive an Under Other Than Honorable Conditions discharge and waived his right to appear before an administrative separation board and to consult with counsel but elected his right to submit a written statement. Everyone in his chain of command, including his sergeant major, recommended the Applicant receive an Under Other Than Honorable Conditions discharge. On 13 July 2007, the Separation Authority (Commander, 2 nd Marine Aircraft Wing), after reviewing the Applicant’s statement, the record of service, and the chain-of-command’s recommendations, ordered the Applicant to be discharged Under Other Than Honorable Conditions. The Applicant was afforded full due process and all applicable rights during the separation proceedings and knew he could receive an Under Other Than Honorable Conditions characterization. With the Applicant’s frequency and severity of misconduct, the NDRB determined his discharge was 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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