ex-, USMC

Current Discharge and Applicant’s Request

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

Summary of Service

Prior Service:
Inactive:        USMCR (DEP)      20030410 - 20031026     Active: 

Period of Service Under Review:
Date of Current Enlistment: 20031027    Age at Enlistment:
Period of Enlistment: Years Months
Date of Discharge: 20051019     Highest Rank:
Length of Service: Year(s) Month(s) 01 Day(s)
Education Level:        AFQT: 73
MOS: 1371
Proficiency/Conduct Marks (# of occasions): / (# of occasions; NFIR)   Fitness Reports:

Awards and Decorations (per DD 214):     Rifle CoA

Periods of UA/CONF:              Lost Time: 20050531 – 20050721 (52 days)

NJP:

- 20040714:      Article (Absence without leave) on or about 0600, 20040708 fail to go to PT formation at appointed time.
         Article (Failure to obey order or regulation) on or about 0600, 20040706 wrongfully possessing a cellular telephone while on restriction.
         Article (False official statements) made official statement with intent to deceive to wit “my cell phone fell in the ocean and I no longer own one” or words to that effect.
         Awarded: Suspended:

- 20040528:      Article (Failure to obey order or regulation) on or about 20040519 - Underage drinking.
         Awarded: Suspended:

SCM:

- 20050802:      Article (Absence without leave) 3 Specifications
         Specification 1: On or about 20050530 fail to go at time prescribed to his appointed place of duty, muster for restriction at 0700.
         Specification 2: On or about 20050530 fail to go at time prescribed to his appointed place of duty, muster for restriction at 0900.
         Specification 3: On or about 20050530 fail to go at time prescribed to his appointed place of duty, muster for restriction at 1100.
         Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) 2 Specifications:
         Specification 1: On or about 20050530 Failure to obey GySgt order to “get into cammies and get back to his barracks” or words to that effect.
         Specification 2: On or about 20050530 Failure to obey SSgt to “lower voice, stay in one place, and stop arguing” or words to that effect.
         Article (Failure to obey lawful order or regulation) 2 Specifications:
         Specification 1: On or about 20050530 wrongfully possessed an unregistered replica firearm.
         Specification 2: On or about 20050530 consumed alchohol under the age of 21 and wrongfully possessed hard liquor in the barracks.
         Article 95 (Resist apprehension)
         Article 109 (Destruction of personal property)
         Specification 1: On or about 20050530 willfully destroyed and damaged property of some value of PFC
         Article 128 (Assault)
         Specification 1: On or about 20050530 did, on diverse occasions, assault PFC by striking him with a fist.
         Article 130 (Unlawful entry)
         Specification 1: On or about 20050530 unlawfully entered a dwelling with intent to commit a criminal offense, to wit: destroying and damaging the property of PFC.
         Article 134 (General article) 4 Specifications:
         Specification 1: Drunk and disorderly.
         Specification 2: Wrongful possession of another’s military ID.
         Specification 3: Wrongfully changed date of birth on own military ID.
         Specification 4: Breaking restriction.
         Sentence: (60 days)

SPCM:

CC:

Retention Warning Counseling:

- 20040528:      For NJP on 20040528 for violation of article 92, underage drinking.
- 20040618:      For Pattern of Misconduct. On 20040528 UA from appointed place of duty from 2200-0120; on 20040601 failed to follow barracks regulation by entering an area restricted to male marines, after TAPs wearing only a towel, then provided a false statement to squadron 1stSgt on the incident; on 20040609 made unauthorized personal calls while on restriction, a privilege not afforded to restricted Marines, on 20040616 acted in disorderly and unbecoming manner making derogatory racial comments against a fellow Marine and refused an order to place restriction badge on person.
- 20040714:      For NJP on 20040714, violation of articles 86, 92 and 107.

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 P1900.16F), 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 violations of the UCMJ, Articles 92, 91, 107, 108, and 128.

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

Applicant’s Issues

1.       The Applicant wants an upgrade of his discharge to be eligible for Veterans Affairs (VA) benefits and employment opportunities.

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 did not identify any decisional issues to the Board. However, the Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included 6105 counseling warnings; for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation; 2 specifications), and Article 107 (False official statements); and for of the UCMJ: Article 86 (Absence without leave; 3 specifications), Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer; 2 specifications), Article 92 (Failure to obey order or regulation; 2 specifications), Article 95 (Resist apprehension), Article 109 (Destruction of personal property), Article 128 (Assault), Article 130 (Unlawful entry), and Article 134 (General article; 4 specifications). Based on the offense(s) 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.

: (Nondecisional) The Applicant wants an upgrade of his discharge to be eligible for Veterans Affairs (VA) benefits and employment opportunities. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

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 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