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)      19950406 - 19951203     Active: 

Period of Service Under Review:
Date of Current Enlistment: 19951204    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 19990730     Highest Rank:
Length of Service: Year(s) Month(s) 27 Day(s)
Education Level:        AFQT: 74
MOS: 0352
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle LoC

Periods of Time Lost per DD Form 214: 19981222 – 19981222, 1 day; 19990219 – 19990221, 3 days; 19990222 -19990419, 56 days; 19990626 – 19990627, 2 days

NJP:

- 19960808:      Article 92 (Failure to obey order or regulation, to wit: possession of an open alcoholic beverage inside a motor vehicle)
         Awarded: Suspended:

- 19980803:      Article 86 (Absence without leave) 2 specifications
         Specification 1: On or about 0700 19980710 to 1030 19980710
         Specification 2: On or about 0700 19980715 to 0740 19980715
         Awarded: Suspended:

- 19990609:      Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article 92 (Failure to obey order or regulation, to wit: driving with a suspended driving privilege)
         Awarded: Suspended:

SCM:










SPCM:

- 19990419:      Article 86 (Absence without leave, to wit: on or about 19990219 to 19990222)
         Article 92 (Failure to obey order or regulation)
         Article 112a (Wrongful use, possession, etc., of controlled substances) 2 specifications
         Specification 1: On or about 19981214, wrongfully use marijuana
         Specification 2: On or about 19990222, wrongfully use marijuana
         Article 134 (General article – Restriction, breaking)
         Sentence: 120 days REPRIMAND


CC:

Retention Warning Counseling:

- 19990501:      For your frequent infractions of the UCMJ. You have been counseled on frequent occasions about infractions of the UCMJ. Your attitude towards this matter shows poor judgment and the lack of responsibility on your part.

- 19990512:      For driving on base suspension.

Administrative Corrections to the Applicant’s DD 214

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

         “”

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:                  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 P1900.16E), effective 31 January 1997 until 31 August 2001.

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 he was not afforded his due process rights.
2.       The Applicant contends that he was administratively separated for offenses that he was previously found not guilty.
3.       The Applicant contends the charges were trumped up.
4.       The Applicant contends he was subjective to abusive and illegal treatment by his command.
5.       The Applicant contends he was bullied into waiving his right to an administrative board.
6.       The Applicant contends he smoked marijuana to due to the death of his grandmother.

Decision


Date: 20141204           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 6105 counseling warnings, for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), and Article 92 (Failure to obey order or regulation, 2 specifications); and for of the UCMJ: Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation), Article 112a (Wrongful use, possession, etc., of controlled substances, 2 specifications), and Article 134 (General article – Restriction, breaking). 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 he was not afforded his due process rights. The Applicant specifically contends that his command separated him prior to the Court-Martial Order (CMO) was published. The Applicant was administratively separated and was not punitively discharged. The administrative separation process does not require that the CMO be published prior to administrative separation. Per paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001, a Marine may be separated when there is a pattern of misconduct which includes two or more discreditable involvements with civil and/or military authorities or two or more instances of conduct prejudicial to good order and discipline within one enlistment. The Applicant’s record of service included two 6105 counseling warnings, three NJPs, and one SPCM. Per MCO P1900.16E, since the Applicant waived his right to an administrative board, the separation authority shall determine whether the allegations in the notification of the basis for separation are substantiated by a preponderance of the evidence. The record shows that the Applicant pled guilty at SPCM to violations of the UCMJ: Article 86, Article 92, Article 112a, and Article 134. The record indicates that the Separating Authority determined that the preponderance of the evidence supported that the Applicant had a pattern of misconduct. The NDRB discerned no impropriety and the Applicant’s discharge for his pattern of misconduct was appropriate. Relief denied.

Issues 2-3: (Decisional) () . The Applicant contends that he was administratively separated for offenses that he was previously found not guilty. The Applicant further contends the charges were trumped up. The record does not show that the Applicant was found not guilty of any charges at his SPCM; however, the record does show that the Applicant pled not guilty to multiple charges that were in fact withdrawn with prejudice at his SPCM. However, the NDRB could not ascertain any previous withdrawn charge that was later used as basis for his administratively separation. The record shows that the Applicant was found guilty at his final NJP for misconduct which occurred after his SPCM and the charges that he was found guilty at his final NJP had clearly not been brought forth previously at his SPCM. The Applicant was afforded the rights to consult with counsel and to request a trial by court-martial but the Applicant declined these rights and accepted NJP. If the Applicant felt he was mistakenly charged with a crime or that the charges were trumped up, it was his obligation to contest those charges at the time they were made. During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention; therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.

4: (Decisional) () . The Applicant contends he was subjective to abusive and illegal treatment by his command. The NDRB is not an investigative body, and allegations of abuse and/or illegal activity should be made to an appropriate law enforcement organization or the Inspector General’s Office. However, the government enjoys a presumption of regularity in the conduct of its affairs and the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The evidence provided by the Applicant does not demonstrate that the Applicant was not responsible for his own misconduct or that his discharge was improper. The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification. Relief denied.

5: (Decisional) () . The Applicant contends he was bullied into waiving his right to an administrative board. 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 he was wrongfully coerced into waiving his right to an administrative board. The NDRB discerned no impropriety or inequity and the Applicant’s separation for his misconduct was appropriate. Relief denied.

6: (Decisional) () . The Applicant contends he smoked marijuana due to the death of his grandmother. While the Applicant may feel that the death of his grandmother was a contributing factor to his misconduct, it does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. 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 MISCONDUCT. The Applicant is no longer eligible for additional reviews or hearings by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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