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)      20070831 - 20080411     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20080412    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20111019     Highest Rank:
Length of Service: Year(s) Month(s) 8 Day(s)
Education Level:        AFQT: 61
MOS: 6153
Proficiency/Conduct Marks (# of occasions): () / ()   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle

Periods of CONF:
NJP:

- 20090304:      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) Used profanity towards and NCO in replying when questioned by the DNCO about his whereabouts.
Article (Failure to obey an order or regulation) 2 specifications.
         Specification 1: On or about 1800, 20090227 LCpl neglected to check out with the DNCO and sign out in the liberty logbook.
         Specification 2: On or about 1100 20090301 LCpl neglected to check out with the DNCO and sign out in the liberty logbook.
         Article (General article) Drunk and disorderly in his conduct towards a SSgt (SDO) and Sgt (DNCO).
         Awarded: Suspended:

- 20110321:      Article (Absence without leave) On 20110313 SNM failed to be at his appointed place of duty.
         Article 112 (Drunk on duty) On 20110314 SNM showed up to work blatantly intoxicated.
         Awarded: Suspended:

SCM:

- 20110920:      Article (Absence without leave) UA from 20110801 to 20110811 (10 days).
         Article (Failure to obey order or regulation) Failure to check in toolbox to ensure all tools were accounted for.
         Article (Assault consummated by battery) 2 Specifications
         Specification 1: Repeatedly strike LCpl in the face with his fist.
         Specification 2: Unlawfully shove LCpl in the chest with his hands.
         Article (General article) Drunk and disorderly.
         Sentence: HARD LABOR

SPCM:

CC:


Retention Warning Counseling:

- 20110322:      For NJP on 20110321. Articles 86 (Absence without leave) and 112 (Drunk on duty).

- 20090305:      For NJP. Violation of article 92 (Failure to obey order or regulation), violation of article 91 (Insubordinate conduct toward Non- Commissioned Officer), violation of article 134 (Disorderly conduct, drunkenness).

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article.

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

Applicant’s Issues

1. The Applicant contends that he was a good Marine and his misconduct was due to his youth and immaturity and not knowing how to handle the difficulties he faced.
2. The Applicant contends that a great injustice was done to him by his command and that caused him to go UA.

Decision

Date: 20150225           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 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article (Failure to obey an order or regulation, 2 specifications), and Article (General article, Drunk and disorderly in his conduct towards a SSgt (SDO) and Sgt (DNCO); and for of the UCMJ: Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation), Article 128 (Assault consummated by battery, 2 specifications), and Article (General article, Drunk and disorderly). 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 that he was a good Marine and his misconduct was due to his youth and immaturity and not knowing how to handle the difficulties he faced. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. 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. Further, the NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Relief denied.

: (Decisional) () . The Applicant contends that a great injustice was done to him by his command and that caused him to go UA. The Applicant is asking for relief and implies that the punishment was too harsh. While other members of his unit may have been charged with the same or similar offenses, each case must stand on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment. 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 his discharge was improper or inequitable. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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 PATTERN OF MISCONDUCT. 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