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USMC | DRB | 2014_Marine | MD1400852
Original file (MD1400852.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140324
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)       20090901 - 20100613     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20100614     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20140131      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 18 D a y ( s )
Education Level:        AFQT: 63
MOS: 0311
Proficiency/Conduct M arks (# of occasions):     Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle ACM ( 3 )

Period of UA / CONF : 20120507 - 20120509 (3 days)

NJP:

- 20120530 :       Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20120808 :       Article (Failure to obey order or regulation)
         Article (Assault)
         Awarded: Suspended:

- 20130531 :      Article (Failure to obey order or regulation)
         Awarded: Suspended: (Vacated 20130722)

- 20131220 :       Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20140107 :      Article (Wrongful use, possession, etc. of controlled substances)
         Awarded: Suspended:

SCM:     CC:

SPCM:

- 20130211 :       Art icle (Failure to obey order or regulation)
         Sentence :

CIVIL ARREST:
- 20131218 :       Charges: Operating a vehicle while under the influence and two outstanding civilian warrants

Retention Warning Counseling :

- 20120 531 :       For the following deficiencies : Your recent NJP held on 20120530 for violation of Article 92 of the UCMJ .

- 20120808 :       For the following deficiencies : On 8 August 201 2 you were subject to Battalion level NJP, assault and disobeying a lawful order under A rticles 128 and 92 of the UCMJ.

- 20 1 30313 :       For the following de ficiencies : On 11 February 2013 you were subject to a Special Court Martial under the UCMJ for violation of Article 91 , Contempt toward a petty officer, Article 92, Failure to obey lawful general order, and Article 128, Assault upon a petty officer and found guilty. Also, you have been convicted of two previous non-judicial punishments formulating a pattern of misconduct. Your conduct has set a poor example for your fellow Marines to emulate.

- 20130531 :       For the following deficiencies : On 31 May 201 3 you were subject to Battalion level NJP under the UCMJ for violation of Article 92 , Failure to obey an order or regulation in that you cheated on the run portion of the physical fitness test.

- 20130717 :       For violation of Article 92, disobeying a lawful order. Specifically, you were late checking in for restriction muster on multiple occasions. This violates the condition of your restriction directing you to sign in with the Battalion Officer of the Day. You were reduced to the rank of Private, which was suspended for a period of six month and you were awarded a forfeiture of one half of one month’s pay for two months, $758.00 per month (total forfeiture of $1516.00) of which, one of those months were suspended for a period of six months (total suspended $758.00). You are hereby notified that I am vacating your suspension, reducing you to the rank of Private, and forfeiture of half months pay for a total of $758.00. Any further violations of orders will result in further administrative and punitive actions.

- 20 1 31220 :       For the demonstrated shortfalls regarding your recent battalion level Non-Judicial Punishment held on 20131220 for violation of Article 92 of the UCMJ. On 18 December 2013 at or about 0130 SNM was identified for two outstanding warrants. During the course of the investigation, the Hawaii Police Officer sm elled a strong odor of alcohol e mitting from your person. SNM then refused a Breathalyzer analysis and field sobriety test. SNM was then detained for operating a vehicle while under the influence.

- Undated :        For violation of Article 112a of the UCMJ. On 18 December 2013 , you were identified for positive use of cocaine through a command authorized urinalysis.

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 :        


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant seeks an upgrade to receive benefits .
2.       The Applicant contends he was discharged with a broken forearm and was released without a proper diagnosis .
3.       The Applicant contends his 43 months of service with one combat deployment and service in leadership positions above his paygrade warrant consideration for an upgrade .

Decision

Date: 20 1 4 0826           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, for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation , ) and Article ( Wrongful use, possession, etc. of controlled substances , cocaine, ) , and for of the UCMJ: Article ( Failure to obey order or regulation , ). Additionally, the Applicant’s record of service indicates he was the subject of a civil arrest for driving while intoxicated and two outstanding civil warrants. The Applicant a pre-service drug waiver prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 12 August 2009 . Based on the Article 112a violation alone , processing for administ rative separation is would have been mandatory. However, based on his previous and substantial misconduct , his command notified him twice for separation due to a demonstrated pattern of misconduct in both March and November 2013 . When notified of a dministrative separation processing using the procedure in March 2013 , the Applicant rights to consult with a qualified coun sel and request an administrative board but waived his right to submit a written statement . The NDRB did not have the Applicant’s complete administrative separation package from his November 2013 notification to determine whether or not the Applicant waived rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: (Nondecisional) The Applicant seeks an upgrade to receive 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.

: (Decisional) ( ) . The Applicant contends he was discharged with a broken forearm and was released without a proper diagnosis. 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 improperly discharged with a broken forearm. Additionally , the NDRB does not consider the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s significant misconduct throughout his enlistment or justify his continued service on active duty. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.




: (Decisional) ( ) . The Applicant contends his 43 months of service with one combat deployment and service in leadership positions above his paygrade warrant consideration for an upgrade. After 7 retention warnings, 5 NJPs, a Special Court-Martial, and a civilian arrest, his command processed him for administrative separation. Since the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characteriza tion of service 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.

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 .


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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