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USMC | DRB | 2014_Marine | MD1400551
Original file (MD1400551.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140204
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to: or uncharacterized
         Narrative Reason change to: OR ENTRY LEVEL PERFORMANCE

Summary of Service
Prior Service:
 Inactive:         USMCR (DEP)       20050817 - 20060709     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20060710     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20071005      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 26 D a y ( s )
Education Level:        AFQT: 88
MOS: 0351
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness Reports:

Awards and Decorations (per DD 214):     Rifle (2)

Periods of UA / CONF :

NJP:

- 20070503 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded: Suspended:

- 20070607 :      Article (Failure to obey order or regulation)
          Article (General A rticle - break restriction)
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20070503 :      For violation of Article 91, in that you were caught cheating on a test after being told to keep your eyes on your own paper and were subsequently dropped from a formal school as a result.

- 20070608 :      For violation of Article 134, in that, you were, as a result of previous overindulgence in intoxicating liquor or drugs , incapacitated for the proper performance of your duties, and having been restricted to the limits of your barracks, by a person authorized to do so, you did, on or about 1600, 20070507, break restriction.









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 requests a change to his Re-Entry Code.
2 .       The Applicant contends he wa s innocent of cheating on the test that resulted in his first nonjudicial punishment (NJP) and 6105 counseling warning. He contends his second NJP was unjust, because he did not understand what restriction was.
 3 .       The Applicant contends he should have been administratively separated for mental health concerns and not misconduct.
 4 .       The Applicant contends there were several administrative and procedural errors in his notification and discharge process.
5 .       The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

 Date: 20 1 4 0820            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 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 NJPs for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ), Article 92 ( Failure to obey order or regulation ), and Article 134 ( General A rticle ). Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board . However, per the Applicant ’ s DD Form 214, the Separation Code HKA1 indicates the Applicant waived his right to an administrative board.
Issue 1: (Nondecisional) The Applicant requests a change to his Re-Entry 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 Board for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends he was innocent of cheating on the test that resulted in his first NJP and 6105 counseling warning. He contends his second NJP was unjust, because he did not understand what restriction was. 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 wrongly found guilty at either of his two NJPs. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, a fter a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service. By majority rule, the NDRB voted to upgrade the Applicant’s discharge to General (Under Honorable Conditions) but not to change the narrative reason of Misconduct. Partial r elief granted. Full relief to Honorable was not granted due to the pattern of misconduct, and the narrative reason was not changed to Secretarial Authority or Entry Level Performance, because he did have a pattern of misconduct per the Marine Corps Separation and Retirement Manual and served greater than 180 days and therefore did not qualify for an Entry Level Performance separation.


: (Decisional) ( ) . The Applicant contends he should have been administratively separated for mental health concerns and not misconduct. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons , such as medical . When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends there were several administrative and procedural errors in his notification and discharge process. The Applicant’s record of service was incomplete , and the NDRB could not locate the Applicant’s complete discharge package. 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 conducted an exhaustive review of the Applicant’s available record s and noted the administrative errors cited in the Applicant’s application to the NDRB. However, the NDRB determined these administrative errors did not materially affect the propriety or equity of the discharge. Relief denied.
5 : (Decisional) ( ) . The Applicant contends his post-service conduct is worthy of 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, evidence of college attendance and degrees, a law enforcement printout showing two minor driving incidents in Michigan , a record void of traffic incidents from the state of California, proof of continuous employment, four character reference letters, his testimony, and the testimony of his friend and fellow enlistee. The NDRB determined sufficient relief was granted in Issue 1 and further relief is not warranted based on post-service conduct. 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 but the narrative reason for separation shall remain . The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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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