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USMC | DRB | 2014_Marine | MD1400360

Original file (MD1400360.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20131219

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)       20050930 - 20051017     Active:

Period of Service Under Review:
Date of Current Enlistment: 20051018     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20080214      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 60
MOS: 1316
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle

Periods of CONF :

NJP:

- 20070802 :      Article (Making, drawing, or uttering check, draft, or order without sufficient funds)
         Article (General A rticle - fail to maintain sufficient funds in bank account)
         Awarded: Suspended:

- 20070824 :       Article (Absence without leave , 0605, 20070801 )
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: Violated restriction
         Specification 2: Disobeyed ALMAR 035/07 by wearing the MCCUU off-base to an unauthorized establishment
         Awarded: Suspended:

- 20071107 :      Article (Absence without leave , 0500, 20071010)
         Article (Failure to obey order or regulation)
         Article (Assault)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20070802 :       For violation of Article 123a, making, drawing, or uttering check, draft, or order without sufficient funds, and Article 134, debt, dishonorable failure to pay.

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 was improper and involved false information being sent to a Senator and Congressman by a commissioned officer.
2.       The Applicant contends he is innocent of the Article 123a and Article 128 violations.
3 .       The Applicant contends he was harassed b y fellow Marines.

Decision

Date: 20140702          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 warning 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 , 3 specifications ), Article 123a (Making, drawing, or uttering check, draft, or order without sufficient funds) , Article 128 (Assault) , and Article 134 (General A rticle - fail to maintain sufficient funds in bank account) . The Applicant submitted a pre-trial agreement to plead guilty at NJP or summary court-martial to violating UCMJ Article 86 (Absence without leave) , Article 92 (Failure to obey order or regulation) , and Article 128 (Assault) and waive his administrative board if the charges were not referred to a S pecial or G eneral C ourt- M artial. Based on the offenses committed by the Applicant and his pre-trial agreement, 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 , and , per his pre-trial agreement, the Applicant waived his right to request an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was improper and involved false information being sent to a Senator and Congressman by a commissioned officer. The Applicant provided letters from the Office of Legislative Affairs to the Applicant’s Senator and Congressman , which state, “[The Applicant] was the subject of two Company level and two Battalion level Non Judicial punishments for: consuming alcohol under the age of 21; and proceeding to operate a motor vehicle; uttering a check without having sufficient funds in his account; absenting himself form company physical training without authority; violating restriction; violation of the Marine Corps policy prohibiting the wearing of a digital camouflage uniform off-base to unauthorized establishments; assault on another Marine; and again violating his imposed restriction. The Applicant also provided documentation showing that he was of legal drinking age when he entered the service and contends he never drove a vehicle under the influence. The Applicant’s service record does not annotate any misconduct in regards to underage drinking or driving under the influence. However, t he record does show the Applicant was found guilty at three separate NJPs , and he failed to rehabilitate his conduct after receiving an official retention warning counseling. Although the record indicates the Office of Legislative Affairs erred when a nnotat ing the Applicant’s misconduct , the NDRB determined that the additional charges of consuming alcohol under the age of 21 and proceeding to operate a motor vehicle were immaterial to the Applicant’s due process and the justification of his administrative separation. The NDRB discerned no material impropriety or inequity with the Applicant’s discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends he is innocent of the Article 123a and Article 128 violations. The record of evidence clearly shows the Applicant waived his rights to trial by court- martial and an administrative separation board. I f 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. Relief denied.

: (Decisional) ( ) . The Applicant contends he was harassed b y fellow Marines. 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’s statements and documents provided do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show he was improperly or unfairly harassed , it would neither amount to a justification nor to a defense for the Applicant’s own misconduct. In addition, t he 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 circumstances to 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 any mitigating circumstances. 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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USMC | DRB | 2014_Marine | MD1400360

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