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USMC | DRB | 2014_Marine | MD1400370

Original file (MD1400370.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)       20080602 - 20080907     Active:

Period of Service Under Review:
Date of Current Enlistment: 20080908     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20120907      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 00 D a y ( s )
Education Level:        AFQT: 70
MOS: 0451
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle

Periods of CONF :

NJP:

- 20100408 :       Article (Absence without leave , 2 specifications )
         Specification 1: 0730, 20100407-0900, 20100410 , less than 24 hours
         Specification 2: On or about 20100228, SNM failed to go to his appointed place of duty, USS Blue Ridge.
         Article ( M issing movement)
         Article (Failure to obey order or regulation , 2 specifications )
         Specification 1: On or about 20100313, LCpl B_ violated MCBJ/III MEFO 1050.7 Liberty Campaign, by leaving base and drinking alcohol while assigned to the Liberty Risk Program.
         Specification 2: On or about 20100405, LCpl B_ failed to obey MCBJ/III MEFO 1050.7 Liberty Campaign by leaving base and spending the night in Naha , Japan.
         Article (General A rticle, on or about 20100405, LCpl B_ was drunk while on duty LCpl B_’s BAC was 0.13 when initial assessment was done at the Bush Medical Clinic )
         Awarded: Suspended:

- 20110224 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Article (False official statements)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling :

- 20090429 :       For violation of MCBJ/III MEFO 1050.7 Liberty Campaign Order. You were apprehended by local authorities as a passenger of a vehicle being driven by another person under the influence of alcohol. The time you were apprehended was after 2400, a violation of the Order by a Red Liberty Card Holder. You also failed to sign out in the Liberty logbook and did not have a Liberty Buddy as required by the Liberty Campaign Order.

- 20100408 :       For violation of Article 92x2 of the UCMJ ( F ailure to obey order or regulation) . Specifically , MCBJO 1050.3A. by consuming alcohol and being off base again while assigned to the liberty risk program. Violation of Article 86x2 of the UCMJ (Unauthorized absence) failure to go to your appointed place of duty. Violation of Article 134 of the UCMJ (Drunkenness) was drunk during working hours.

- 20110224 :       For violation of Article 86 of the UCMJ (Unauthorized Absence) and v iolation of Article 92 of the UCMJ (Failure to obey order or regulation ) and violation of Article 107 (False o fficial s tatements) .

- 20110506 :       For the following deficiencies: you have been convicted at III MEF Level NJP for violation of UCMJ on two separate occasions , one on 20100408 and the other on 20110224.

- 20110520 :       For my unsatisfactory performance of duty, specifically, failure to abide MCO P1020.34G, failure to report in to your command in your Service Alphas Uniform. SNM knowingly and willfully left the sea bag with his Service Alphas in Okinawa, Japan.

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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 2001 until Present, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION .

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 w ants to use the GI Bill.
2.       The Applicant contends his command treated him unfairly.
3.       The Applicant contends he never received a P age 11.

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 warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 3 specifications ), Article 87 (Missing movement) , Article 92 (Failure to obey order or regulation , 3 specifications ), Article 107 (False official statements ), and Article 134 (General A rticle, drunk on duty). The Applicant was separated at the end of his obligated active service with average P roficiency and C onduct marks of 3.9 and 3. 9 , respectively.

: (Nondecisional) The Applicant wants to use the GI Bill. 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 his command treated him unfairly. The Applicant specifically contends that he was promoted to lance corporal on 01 January 2011 and was incorrectly reduced to E-1 , which was not in the commanding officer’s authority. 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 NDRB could not find any evidence that the Applicant was promoted to lance corporal on 01 January 2011. However, the NJP paperwork from 24 February 2011 lists the Applicant as a PFC and being reduced to E-1. Further, the Applicant declined his right to appeal the NJP, thus accepting the NJP as factual. Regardless, any impropriety of the Applicant’s grade reduction is outside the scope of the NDRB . In addition , the record shows the Applicant was reduced in rank at this NJP , and this would have been within the commanding officer’s authority . Th e NDRB determined that it is immaterial to the Applicant’s P roficiency and C onduct marks whether he should have been reduced from E-3 to E-2 or E-2 to E-1. The NDRB found the Applicant’s P roficiency and C onduct marks were in accordance to his documented misconduct and retention warnings and , therefore, t he NDRB discerned no impropriety or inequity in his marks or the discharge process. The Applicant had significant misconduct and his command provided him multiple opportunities to reform his behavior. The NDRB determined the record shows his command not only treated him fairly, but he is fortunate that he was not separated earlier for Misconduct (Pattern of Misconduct) or Misconduct (Serious Offense). Relief denied.

: (Decisional) ( ) . The Applicant contends he never received a P age 11. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant submitted portions of Enclosure 1 from Marine Corps Order (MCO) 1900.16 dated 26 November 2013. This order states for Corporals and below with average Proficiency Marks below 3.0 and Conduct Marks below 4.0 , “Characterization of service for Marines in this category should be General (Under Honorable Conditions). No additional documentation or justification is required to assign a General (Under Honorable Conditions) characterization of service in these cases. ” The requirements for written notification and an opportunity to submit matters for consideration only apply to Marines other than corporal and below, i.e. sergeant and above. Regardless, t he record shows the Applicant was given five 6105 counseling warnings , and the Applicant chose not to make any statement when counseled. Based on MCO 1900.16 , the NDRB found the Applicant’s contention to be without merit. 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 | MD1400370

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