Search Decisions

Decision Text

USMC | DRB | 2014_Marine | MD1401189
Original file (MD1401189.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20140603
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)       19980417 - 19981012     Active:            19981013 - 20021001

Period of Service Under Review:
Date of Current Enlistment: 20021002     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 200506 2 0      H ighest Rank:
Length of Service : Y ea r ( s ) M on th ( s ) 19 D a y ( s )
Education Level:        AFQT: 31
MOS: 3112
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations (per DD 214):      Pistol (2) LoA(2)

NJP:

- 20040407 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation)
         Article 117 (Provoking speeches or gestures)
         Article (General article; disorderly conduct, drunkenness)
         Awarded: Suspended: (Vacated 20040624)

- 20040628 :       Article (Absence without leave) 3 specifications
          Specification 1: On or about 18 June 2004, failed to report to section PT at 0550
         Specification 2: On or about 18 June 2004, failed to report to the H&HS Duty post and relief at 0730
         Specification 3: On or about 18 June 2004, failed to report to his work section at 0830
         Awarded: Suspended:

- 20050518 :       Article (Absence without leave) 2 specifications
         Specification 1: On or about 11 May 2005, failed to report to morning formation at 0630
         Specification 2: On or about 11 May 2005, failed to report to his work section at the prescribed time at 0730
         Awarded: Suspended:

SCM:

SPCM:

- 20050310 :       Art icle (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) 2 specifications
         Specification 1: On or about 13 December 2004, was disrespectful toward a Staff NCO
         Specification 2: On or about 13 December 2004, willfully disobeyed a lawful order
         Art icle (General article; disorderly conduct, drunkenness)
         Sentence : 75 days ( 20050310-20050507 , 59 days)
         Convening Authority approved on 20050719
CIVIL ARREST:

CC:

- 20030515 :       Offense: Violation of California Penal Code 484 (Larceny)
         Sentence : Three year probation, $250 fine, restitution in the amount of $472.76

- 20040901 :       Offense: Violation of PC 415(2), misdemeanor, (x2); maliciously and willfully disturb another person by loud and unreasonable noise
         Sentence : Three year probation, $200 fine

- 20041220 :       Offense: Driving Under the Influence (DUI) , BAC .16
         Sentence : 180 days in jail (suspended for five years), $1,860.00 fine ($100 suspended), 2 days in the Public Service Work Program, attend the three month first conviction program, 90 days restricted license

Retention Warning Counseling :

- 20040407 :       For your NJP on 7 April 2004 for violating Art. 91, 92, 117, and 134 of the UCMJ.

- 20040707 :       For your failure to be at your appointed place of duty on time.

- 20050112 :       For your civilian court conviction for DUI on 041220, your second alcohol related incident on 041213, your third alcohol related incident on 050106, and your alcohol related incident on 040830.

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19981013 UNTIL 20021001 ”

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 his discharge is inequitable because it was based on an isolated period of misconduct in his last year of service with no other adverse action .
2.       The Applicant contends his post-service conduct is worthy of an upgrade .

Decision

 Date: 20 1 4 1021            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, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , five specific ation s), Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , one specification ), Article 92 ( Failure to obey order or regulation , one specification), Article 109 ( Property other than military property of the United States—waste, spoilage, or destruction , one specification), Article 117 ( Provoking speeches or gestures , one specification), and Article 134 ( General article; disorderly conduct, drunkenness; one specific ation ); for of the UCMJ: Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer, two specifications) and Article 134 ( General article; disorderly conduct, drunkenness; one specification); and three civil convictions for violation of the California Penal Code 484 (Larceny), driving under the influence, and two counts of maliciously and willfully disturbing another person by loud and unreasonable noise . Based on the offense(s) committed by the Applicant, command administratively processed for separation. When notified of a dministrative separation processing using the procedure, the Applicant right to an administrative board and elected to exercise his right to submit a written statement ; however, his record shows his commanding officer documented that the Applicant failed to provide this statement in the time allotted.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable because it was based on an isolated period of misconduct in his last year of service with no other adverse action. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The 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. 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 his post-service conduct is worthy of an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that 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. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS 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

Similar Decisions

  • NAVY | DRB | 2006_Navy | ND0600584

    Original file (ND0600584.rtf) Auto-classification: Denied

    *Third set of Performance and Behavior marks extracted from supporting documents submitted by the Applicant (page 1 only) Character, Narrative Reason, and Authority of Discharge (at time of issuance):UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600). Pt stated that he has had suicidal thoughts since a kid but denied any plans or attempts. When the service of a member of the U.S. Navy has been honest and faithful, it is...

  • USMC | DRB | 2012_Marine | MD1200976

    Original file (MD1200976.rtf) Auto-classification: Denied

    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. ADDENDUM: Information for the Applicant Complaint Procedures : If you believe the...

  • NAVY | DRB | 2010_Navy | ND1001893

    Original file (ND1001893.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.

  • NAVY | DRB | 2011_Navy | ND1101605

    Original file (ND1101605.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade in order to receive health benefits. ” 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. A request for a waiver can be submitted during the processing of a formal...

  • USMC | DRB | 2014_Marine | MD1400284

    Original file (MD1400284.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...

  • NAVY | DRB | 2013_Navy | ND1300995

    Original file (ND1300995.rtf) Auto-classification: Denied

    Though his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1), the NDRB included a Navy psychiatrist on the personal hearing board as a result of the MST PTSD.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. Relief denied.Summary: After a thorough review of the available evidence, to...

  • NAVY | DRB | 2014_Navy | ND1400323

    Original file (ND1400323.rtf) Auto-classification: Denied

    While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand 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...

  • NAVY | DRB | 2013_Navy | ND1300852

    Original file (ND1300852.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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. Relief denied.Summary:...

  • USMC | DRB | 2012_Marine | MD1200223

    Original file (MD1200223.rtf) Auto-classification: Denied

    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. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2014_Navy | ND1400299

    Original file (ND1400299.rtf) Auto-classification: Denied

    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. ” Additional Reviews : After a document review has been conducted, former members are...