ex-, USMC

Current Discharge and Applicant’s Request

Applicant’s Request:     Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20070228 – 20071113     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20071114    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20111216     Highest Rank:
Length of Service: Year(s) Month(s) 03 Day(s)
Education Level:        AFQT: 96
MOS: 2651
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of CONF:

NJP:

- 20110413:      Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20111123:      Article (Absence without leave)
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Failure to obey order or regulation) 2 specifications
         Article (False official statements)
         Awarded: Suspended:

SCM:

SPCM:    CC:

Retention Warning Counseling:

- 20091202:      For misconduct. Specifically, violation of Article 86 and Article 92 in that you were late to your appointed place of duty at least four times which have been documented by section level written counseling and that you ignored an order from a sergeant to remain at your appointed place of duty.

- 20100922:      For unauthorized absence. On 0730, 20100921, you were in a UA status when you failed to show up to your assigned place of duty and did remain absent until 0820, 20100921.

- 20101004:      For unauthorized absence. On 0730, 20101001 you were in a UA status when you failed to show up to your assigned place of duty and did remain absent until 0900, 20101001.

- 20110721:      For your assignment to the Marine Corps BCP.

- 20110802:      For unauthorized absence and failure to obey order or regulation.

- 20110805:      For unauthorized absence and failure to obey order or regulation.

- 20110811:      For insubordinate conduct towards a warrant officer, noncommissioned officer or petty officer. Specifically, on 20110715 you were directed to turn in a report by 20110722 to your OIC and failed to do so. You gave every excuse why you didn’t turn it in and have yet to turn it in. Your blatant disregard for authority displays a lack of judgment, maturity, and professionalism. Such behavior is prejudicial to the good order and discipline and will not be tolerated.

- 20110909:      For misconduct of unauthorized absence and failure to obey an order or regulation. Specifically due to your documented history of unauthorized absences you were ordered by the Company 1 ^st Sgt on 20110828 in order to attend a week of TAM/TAMP classes. You took it upon yourself to move back to your off base residence before the end of the week and without approval from your chain of command. As a result,, you were not at your appointed place of duty and you showed up on base 1 1/2 hours after the start of the work day. This type of conduct and blatant disobedience to orders and regulations is prejudicial to good order and discipline of the United States Marine Corps and will not be tolerated. You are directed to obey all rules and regulations and do not violated the UCMJ or any federal, state, or local statues.

- 20111123:      For misconduct: violation of Article 86, 91 (2 specifications), and 107 resulting in NJP on 20111123.

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 contends discharge should be upgraded because he did not have due process; Applicant contends he did not
waive his rights to request an administrative board knowingly and voluntarily.


Decision

Date: 20141125           Location: Washington D.C.        Representation:

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included nine 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 107 (False official statements). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) () . The Applicant contends discharge should be upgraded because he did not have due process; Applicant contends he did not waive his rights to request an administrative board knowingly and voluntarily. The record reflects the Applicant waived his rights to an Administrative Board prior to meeting with counsel. The Applicant states he would have exercised his rights had the command allowed him to withdraw his waiver of rights and request a board. The Applicant elected to exercise his right to submit a statement to be included with his Administrative separation , after being given ample time to submit such a statement, Applicant did not provide a statement. The Applicant’s command did conduct a thorough investigation into the allegation that the Applicant was coerced into waiving his rights. Based upon available records, nothing indicates the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. The Applicant’s Commanding Officer summarized the Applicants service with the units as “a completely negative influence on the command, he never once (not even a little bit) contributed to the overall mission of this battalion, and surely does not deserve anything but an OTH characterization of service.” The record also clearly contains the Applicant’s Memorandum of Pretrial Agreement in which the Applicant entered Pleas of guilty and acknowledged being advised by his defense counsel of the meaning and effect of his guilty pleas, and their attendant effects and consequences, including the possibility the he may be processed for administrative discharge from the United States Marine Corps. The preponderance of the evidence reviewed supports the conclusion that the Applicant committed offenses alleged, that separation from the Marine Corps was appropriate, and that a (Under Other Than Honorable Conditions) discharge was warranted. 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