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USMC | DRB | 2014_Marine | MD1400983
Original file (MD1400983.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140408
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)       20050709 - 20060220     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060221     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 20081017      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 27 D a y ( s )
Education Level:        AFQT: 67
MOS: 0231
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Rifle CoC LoA

Period of CONF :

NJP:

- 20071210 :       Article (Drunken or reckless operation of a vehicle, aircraft, or vessel, driving 150mph in a 55mph zone at 2320, 20071205)
         Awarded: Suspended:

- 20080110 :      Article (Absent without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended: (20 days) Vacated 20080709

- 20080804 :       Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
          Article (Failure to obey order or regulation)
         Article (General article, communicating a threat)
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

- 20071205 :       Charges: Reckless Driving

CC:


Retention Warning Counseling :

- 20061207 :       For your unauthorized absence, specifically you were not at your appointed place of duty on more than one occasion without authority .

- 20070819 :       For on the 2 nd of August you were ordered to replace your Armed Forces Identification Card in five days. However you failed to do so. You have previously been counseled in writing on five separate occasions regarding your conduct to include: Unauthorized absences at your appointed place of duty, failure to use your chain of command, disrespect towards a Non-Commissioned Officer, failure to obey lawful orders, and malingering.

- 20080707 :       For insubordinate conduct, poor judgment, and questionable decision making, specifically you were involved in an e-mail chat with another Marine in which you made disrespectful comments about a senior Marine on a government computer .

- 20080819 :       For misconduct

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 first NJP was double jeopardy.
2.       The Applicant contends his command treated him unfairly by over scrutinizing his conduct after his first NJP .
 3.       The Applicant contends his in-service conduct and deployments warrant an upgrade.
4.       The Applicant contends his post-service conduct warrants an upgrade.

Decision


 Date: 20140918            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 (Absent without leave) , Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) , Article 92 (Failure to obey order or regulation , 2 specifications ) , Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel, driving 150mph in a 55mph zone at 2320, 20071205), and 134 (General article, communicating a threat) . Based on t he offense s committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s complete administrative separation package ; however, the record shows he was represented by counsel and he had an administrative board. The administrative board voted three to zero that the preponderance of the evidence supported that the Applicant had Minor Disciplinary Infractions and a Pattern of Misconduct . Further, t he administrative board voted three to zero to recommend the Applicant’s separation with a characterization of Under Other Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends his first NJP was double jeopardy. 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 loc ation or duty status. There is no evidence that the Applicant had b een tried in civil court for his reckless driving prior to his commanding officer impos ing NJP . Therefore, the NDRB discerned no impropriety or inequity and the Applicant’s separation for his misconduct was appropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends his command treated him unfairly by over scrutinizing his conduct after his first NJP. Though the Applicant may feel that he was treated unfairly or his command “nit-picked, ” the Applicant’s own statement to the Commanding Officer, Marine Unmanned Aerial Vehicle Squadron 2 dated 21 August 2008 states, “I [redacted] admit that I do have a pattern of misconduct throughout my Marine Corps career.” The record clearly shows the Applicant was given multiple warnings to correct his behavior, but failed to do so. The Applicant’s first two retention warning counselings describe misconduct that would typically merit NJP. This demonstrates that his command was attempting to resolve the Applicant’s misconduct in a lenient manner which runs counter to the Applicant’s contention that he was treated unfairly and over scrutinized. The Applicant accepted NJP vice requesting trial at a court-martial and had the opportunity to address his misconduct and any mitigated factors at an administrative board . However, his a dministrative board determined that the preponderance of the evidence supported that the Applicant had Minor Disciplinary Infractions and a Pattern of Misconduct ; and recommended the Applicant’s separation with a characterization of Under Other Than Honorable Conditions. The NDRB found the Applicant’s contention to be without merit and determined that his separation for his misconduct was appropriate . Relief denied.



: (Decisional) ( ) . The Applicant contends his in-service conduct and deployments warrant an upgrade. 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 characterization of service was warranted. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants 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, LinkedIn profile, college transcripts , and on e character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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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