ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080706
Characterization of Service Received:  
Narrative Reason for Discharge:  completion of required active service
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 19970630 - 19970810  		Active:  

Period of Service Under Review:
Date of Enlistment:  19979811	Period of Enlistment:   Years   Months	Date of Discharge:  20010818
Length of Service:    Years    Months  07  Days	Education Level:        AFQT:  40	   MOS:  2512
Age at Enlistment: 18 or  (Birth dates change on medical records.  No birth certificate) 
Highest Rank:    Fitness Reports:    
Proficiency/Conduct Marks (# of occasions): () / ()
Awards and Decorations (per DD 214):  Rifle  Pistol    Coast Guard MUC

Periods of UA/CONF:  UA:  19971227 – 19971227 (3 minutes)
                                              20010221 – 20010225 (4 days)
                                              20010512 – 20010514 (2 days)
                                              20010625 – 20010626 (1 day)
                                       
NJPs:  4
19991202:  Article 91 (Insubordination to a NCO)
                   Article 92 (Dereliction in performance of duties)
                   Awarded:     Suspended:   

20001127:  Article 92 (Driving after consuming alcohol on Base)
                   Awarded:  RIR EPD RESTR
                   Suspended:  NONE

20010601:  Article 86 (UA) 20010512-20010514
                   Awarded:  EPD RESTR
                   Suspended:  NONE

20010706:  Article 86 (UA) 20010624 – 20010626
                   Awarded:    
                   Suspended:  

SCM:  
20010422:  Article86 (UA), from 21 Feb 01 – 25 Feb 01
                   Article 91 (Insubordinate conduct), 2 specifications:
                         - Specification 1:  Assault on a NCO
                         - Specification 2:  Disrespectful language to a NCO          
                   Article 92 (Failure to obey), driving with a suspended license
                   Article 134 (Drunk and disorderly)
                   Sentence:  , RST (60 days), FOP  Suspended:  FOP

CC:  
               19990216:  Offense:  DUI Civilian Court
                                   Sentence:  Unknown

20010117:  Offense:  DUI/HIT AND RUN San Diego Civilian Court.
                    Sentence:  
	            - 365 days confinement for DUI (suspended)
                                     - 180 days confinement for HIT AND RUN (suspended)
                                     - 96 hours confinement (suspended)
                                     - 5 years probation 
                                     - $2500.00 fine 
                                     - Attend MAADD Class 
                                     - 25 days Community Service 
                                     - Installation of Ignition Breath Intoxilyzer
                                     - Visit Assessment Counselor at San Diego Court House

6105 Counseling:  
19990223:  For DUI off Base 
	20001115:  For driving after consuming alcohol
	20010118:  DUI/Hit and Run off Base.	

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe):  

Pertinent Regulation/Law

A.  Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until 
31 August 2001, Paragraph 1005, DISCHARGE FOR EXPIRATION OF ENLISTMENT OR FULFILLMENT OF SERVICE OBLIGATION.

B.  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, Articles 91, 92 and 134.

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

Applicant’s Issues

1.  Wants education benefits.
2.  Did not know the type of discharge he was getting.
3.  Believes he deserves an HONORABLE because he served overseas.

Decision

Date:  20081003		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  COMPLETION OF REQUIRED ACTIVE SERVICE.

Discussion

:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding .  

:  ()  .  The Applicant claims he did not fully understand the type of discharge he was receiving upon reaching his End of Active Service.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  Despite the fact the Applicant’s record was marred by 4 non-judicial punishments, 3 retention counseling warnings, 3 civilian convictions for DUI, and a summary court-martial, the Applicant was allowed to remain on active duty until the end of his enlistment contract.  The Applicant’s numerous violations of the Uniform Code of Military Justice (UCMJ) represented repeated unauthorized absences, insubordinate conduct, dereliction of duty, driving while intoxicated, failure to obey an order or regulation, and drunk and disorderly conduct.  The civilian convictions were the result of drunk driving and hit and run.  All of these violations are serious in nature and could have easily resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence at a special or general court-martial.  The command did not pursue a punitive discharge; in fact, the record indicates for whatever reason the command did not even pursue an administrative discharge for such grievous and repeated misconduct.  Since the Applicant was not administratively separated, there is no record of counseling concerning the character of discharge he was recommended for by his chain of command.  However, all Marines are required to attend Separations Seminars wherein VA representatives or USMC Separations personnel explain the benefits associated with each characterization of discharge.  The Applicant signed his DD214 which clearly states in block 24 he was to receive a “General (Under Honorable Conditions)”.  If the Applicant did not understand the character of his discharge, it was his responsibility to ask the appropriate questions when he signed his DD214.  Prior to his release from active duty, he had several opportunities to learn or inquire about the type of discharge he was to receive.  The Applicant produces no evidence he was denied access to these opportunities.  

When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  The Applicant’s misconduct, represented by 4 non-judicial punishments, 3 retention warnings, 2 civilian convictions for DUI, and a summary court-martial does not meet the standards of accepted conduct and performance for a U. S. Marine.  The Board determined an upgrade would be inappropriate.

:  ()  .  The Applicant feels he rates an HONORABLE discharged based on his overseas service.  Where a Marine geographically serves has no impact on the type of discharge he receives.  As stated in the above paragraph, when the quality of a service member has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  The Applicant received a “General (Under Honorable Conditions)”.  This discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  The Applicant’s record was marred by 4 non-judicial punishments, 3 retention warnings, 2 civilian convictions for DUI, and a summary court-martial.  The Applicant could have been processed for an administrative separation under a 

Pattern of Misconduct, or Commission of a Serious Offense, where he could have received an “Under Other Than Honorable” discharge.  The Applicant plead guilty to repeated violations of UCMJ Articles 86, 91, 92 and 134.  Violation of Article 91 alone is considered a serious offense, for which if adjudicated as part of the sentence upon conviction by a special or general court-martial, is punishable by a bad conduct or dishonorable discharge and up to three years imprisonment.  Based on the Applicant’s clear record of repeated misconduct over his four years of active duty, an Honorable discharge was not warranted.  The Board determined an upgrade or change would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,  Record, Discharge Process and evidence submitted by the Applicant, the Board found 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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