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USMC | DRB | 2014_Marine | MD1400623

Original file (MD1400623.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:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       20090203 - 2010011 8     Active:

Period of Service Under Review:
Date of Current Enlistment: 20100119     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20130606      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 77
MOS: 6672
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle LoA

Periods of UA / CONF :

NJP:     SCM:     SPCM:

CIVIL ARREST:

- 20120326 :       Charges: V iolation of California Penal Code 422, threaten to commit a crime which would result in death or great bodily injury to another person, California Penal code 273.5(A), willfully inflicts upon your spouse corporal injury resulting in a traumatic condition, California Penal Code 417(A)(2), drew a firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and California Penal Code 236, false imprisonment, an unlawful violation of the personal liberty of another

CC:

- 20120522 :       Offense: V iolation of California Penal Code 594(a)(b)(2)(A), V andalism
         Sentence : Three years of summary probation , ordered to enroll in the 52 week Domestic Violence Recovery Program , restricted from owning, transporting, selling , or controlling a weapon for the next three years with t he only exception to this order being the ability to possess a firearm in the line of duty only.

Retention Warning Counseling :

- 20120404 :       For the following deficiencies: O n 26 March 2012, you were arrested by San Diego Sheriff’s Department for violation of California Penal Code 422, you threaten to commit a crime which would result in death or great bodily injury to another person, California Penal code 273.5(A), willfully inflicts upon your spouse corporal injury resulting in a traumatic condition, California Penal Code 417(A)(2), drew a firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and California Penal Code 236, false imprisonment, an unlawful violation of the personal liberty of another.

- 20120628 :       For the following deficiencies: O n 22 May 2012, you pled guilty to violation of California Penal Code 594(a)(b)(2)(A), V andalism. You were sentenced to 3 years of summary probation and ordered to enroll in the 52 week Domestic Violence Recovery Program. You are also restricted from owning, transporting, selling , or controlling a weapon for the next 3 years. The only exception to this order is the ability to possess a firearm in the line of duty only.

- 20130410 :       For the following deficiencies: O n or about 31 December 2012, you over indulged in alcohol while being on the MALS-11 Substance Abuse aftercare program. Your actions were a direct violation of Article 92, in which you disobeyed a lawful order or regulation not to consume alcohol. While intoxicated you became violent and assaulted Marines verbally and physically with the possible intent to cause harm with a knife while also vandalizing your place of residence.

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT ”

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. 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 h e was never the subject of nonjudicial punishment or any other form of punishment during his enlistment.
2.       The Applicant contends the civilian charges relating to his domestic dispute were reduced and the Marine Corps never punished him for any of the offenses.
3.       The Applicant contends his discharge characterization is inequitable , because he was ultimately discharge d for failing alcohol rehabilitation treatment and a domestic dispute during which he had two drinks but was not drunk.
4.       The Applicant contends the S ubstance Abuse Control Officer (S ACO ) and command treated him unfairly, and he did not have an alcohol problem.
5.       The Applicant contends he was treated unfairly compared to others who have had the same accusations against them.

Decision

Date: 20 1 4 0731         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 sta ndards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings , one civil arrest for violations of California Penal Code 422, California Penal code 273.5(A), California Penal Code 417(A)(2), and California Penal Code 236 , and one civil conviction for violation of California Penal Code 594(a)(b)(2)(A) , Vandalism . 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 exercised his right to consult with a qualified counsel but right to submit a written statement .

: (Decisional) ( ) . The Applicant contends he was never the subject of nonjudicial punishment or any other form of punishment during his enlistment. Per paragraph 6210.3 of the Marine Corps Separation and Retirement Manual, a minimum of TWO incidents occurring within one enlistment is required for a Marine to be separated under a pattern of misconduct discharge . The infractions may be minor or more serious. There must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. The misconduct need not have been the subject of NJP or military or civilian conviction. Such incidents include, but are not limited to, an established pattern of minor unauthorized absences; civil arrests; civil convictions; an established pattern of dishonorable failure to pay just debts; or an established pattern of dishonorable failure to contribute adequate support to family members or comply with orders, decrees, or judgments of a civil court concerning support of family members. The incidents of misconduct do not have to be of the same nature.

The Applicant’s record clearly documents a civil arrest on 26 March 2012 followed by a civil conviction on 22 May 2012 under California Pen al Code 594(a)(b) (2)(A), V andalism . This incident of civil misconduct was followed by an incident on 31 December 2012 where the Applicant directly violated Article 92 of the UCMJ by drinking alcohol while on the MALS-11 substance abuse aftercare program, verbally and physically assaulting fellow Marines with the possible intent to cause harm with a knife, and vandalizing his place of residence. H is command chose not to pursue a punitive discharge or confinement under the UCMJ, but opted instead for the more lenient administrative discharge. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends the civilian charges relating to his domestic dispute were reduced , and the Marine Corps never punished him for any of the offenses. A servicemember may be processed for separation for the commis sion of a military or civilian offense when the offense or a closely related offense is a violation of the UCMJ and warrants a punitive discharge in accordance with the Manual for Courts-Martial. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence. Article 2 of the UCMJ establishes jurisdiction over members of the regular components of the Armed Forces, and therefore, jurisdiction is not limited to a member’s location or duty status. Since the Applicant was arrested and subject to a civil trial for his offenses , the Applicant’s commanding officer decided not to impose NJP relating to his civil misconduct . A civil conviction counts as a misconduct incident. The decision to administratively separate a servicemember is made independently of the imposition of NJP. Based on the civilian conviction and his subsequent violations of the UCMJ documented in his 6105 counseling warning of 10 April 2013, his command chose not to pursue a punitive discharge or confinement under the UCMJ, but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge to be generous considering the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge characterization is inequitable , because he was ultimately discharge for failing alcohol rehabilitation treatment and a domestic dispute during which he had two drinks but was not drunk. The Applicant was clearly notified of his command’s intent to separate him under both a P attern of M isconduct and as an A lcohol R ehabilitation F ailure. During the separation proceedings, the Applicant exercised his right to consult with counsel but waived his right to submit a rebuttal to the separation. If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. The S eparation A uthority found both narrative reasons for separation to be valid and found the narrative reason of P attern of M isconduct to be the primary basis for separation. Relief denied.

4 : (Decisional) ( ) . The Applicant contends the SACO and command treated him unfairly, and he did not have an alcohol problem. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. The record contained no evidence of any wrongdoing by the Applicant’s SACO or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted. Relief denied.

5 : (Decisional) ( ) . The Applicant contends he was treated unfairly compared to others who have had the same accusations against them. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly. The Applicant’s service included three retention warning s, one civil arrest, and one civil conviction. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps . A preponderance of the evidence reviewed supports the conclusion that the Applicant committed multiple acts of misconduct and failed alcohol rehabilitation treatment , that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was generous . 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 | MD1400623

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