ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080717
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MARCORSEPMAN 

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)  19980727 - 19981101  		Active:   

Period of Service Under Review:
Date of Enlistment: 19981102	Period of Enlistment:   Years   Months	Date of Discharge:  20011121
Length of Service:    Years    Months  20  Days	  Education Level:  	Age at Enlistment:  
AFQT:  42	MOS:  6046	Highest Rank:  	Fitness Reports:  
Proficiency/Conduct Marks (# of occasions):		 / 
Awards and Decorations (per DD 214):  Rifle  (2) LoA

Periods of UA:  1100-1230, 20011004 (1 hour 30 minutes)
                          0700-0725, 20011023 (25 minutes) 
                          0700-0900, 20011101 (2 hours) 
                          0700-0730, 20011102 (30 minutes) 
                          0700-0745, 20011105 (45 minutes) 
                          0700-0900, 20011107 (2 hours)

NJP:  
- 20000605:  Article 86 (UA), from 0730 to 1300, 20000306 5 hours 30 minutes.
                     Awarded:      Suspended:   

SCM:     SPCM:    CC:   

6105 Counseling: 
- 19990416:  For traveling out of liberty bounds, and not being present for formation on 19990404.
- 20010530:  For failure to maintain height and weight standards.
- 20010830:  For frequent involvement in minor disciplinary infractions, to wit: domestic disturbance/damage to
                      government property on 20010809 and domestic assault on 20010824.
- 20010925:  For absenting himself from 2337, 20010904.
- 20011108:  For financial obligation with respect to support my dependents.

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) 

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

Applicant’s Issues

1.  Claims his discharge was not appropriate.
2.  Claims he did not receive proper legal counsel concerning his discharge.
3.  Claims he was mislead about the character of his discharge.
4.  Claims mental health disability.
5.  Other Marines in his unit committed more serious offenses and received better discharges.

Decision

Date:  2009409		Location:  Washington D.C.	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (MINOR DISCIPLINARY INFRACTIONS).

Discussion

:  ()  .  The Applicant claims his discharge was not appropriate.  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.   The Applicant’s record of service was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA), five paragraph 6105 counseling warnings, and seven offense reports.  The command recommended an administrative discharge by reason of misconduct due to minor disciplinary infractions.  The NDRB reviewed the Marine Corps Separation and Retirement manual, MCO P1900.16F, paragraph 6210.2, and determined the Applicant met the criteria for separation due to minor disciplinary infractions.  The NDRB determined the Applicant’s discharge was appropriate and an upgrade was not warranted.

:  ()  .  The Applicant claims he was denied proper legal counsel concerning his discharge.  On 8 November 2001, the Applicant initialed and signed an ACKNOWLEDGEMENT OF MY RIGHTS TO BE EXERCISED OR WAIVED DURING SEPRATION PROCEEDINGS letter addressed to his Commanding Officer in which he states, in paragraph 3.a, he consulted with his counsel.  He also acknowledged he has the right to be represented by appointed military counsel or be represented by a civilian counsel at his own expense, paragraphs 4.b and 4.c respectively.  The Applicant provides no evidence he was not properly advised by his lawyer or his lawyer was not competent.  Since he was assigned military counsel and consulted with counsel, the Board determined the Applicant’s claim was without merit; the awarded discharge was appropriate and an upgrade was not warranted.

Issue 3:  ()    The Applicant claims he was “promised” a “General (Under Honorable Conditions)” character of service in writing, but it was changed at the last minute prior to his discharge.  In the Commanding Officer’s, Marine Aviation Logistics Support Element, letter (Ser 1910 17/267-01 of 08 November 2001) to the Applicant regarding the “NOTIFICATION OF SPEPARATION PROCEEDINGS,” the CO wrote in paragraph 3, “…I am recommending you receive an under other than honorable characterization of service.”  In his 8 November 2001 ACKNOWLEDGEMENT OF MY RIGHTS TO BE EXERCISED OR WAIVED DURING SEPRATION PROCEEDINGS letter from the Applicant to his Commanding Officer, the Applicant initialed paragraph 2 in which he understands the least favorable characterizations he may receive is an “Under Other Than Honorable” conditions discharge.  If he did not agree to this, it was his responsibility to object before he signed this document.  The Applicant provides no evidence he was promised a “General (Under Honorable Conditions)” discharge.  In the absence of documentary proof of his statement and based on the evidence contained in the Applicant’s record, the Board determined his claim was without merit.  The awarded discharge characterization was appropriate and an upgrade was not warranted.

Issue 4:  ()    The Applicant claims he is disabled due to unspecified mental trauma.  In the CO’s letter, as referenced in Issue 3 above, the basis for recommendation did not include any statement regarding mental 

trauma of the Applicant.  In his Acknowledgement of Rights letter, the Applicant waived his right to request a hearing before an administrative separation board and choose not to make a statement.  If the Applicant felt he was disabled due to a mental 
trauma, it was his obligation to contest those charges at the time they were made.  During an administrative separation board, he would have had the opportunity to mount a defense against the charges against him.  The NDRB requested the Applicant’s medical records but they were not available.  Since the Applicant submitted no evidence to support his contention, the NDRB must rely upon the presumption of regularity in the conduct of government affairs.  Based on all evidence reviewed, the NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issue 5:  (Equity) RELIEF NOT WARRANTED.  The Applicant states his character of discharge is unjust because other Marines in his unit who were guilty of more severe misconduct were granted “General (Under Honorable Conditions)” discharges and he received an “Under Other Than Honorable Conditions” discharge.  The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by the award of five retention warnings, seven offense reports and one NJP.  Review of available records reveals nothing to indicate the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. Additionally, the NDRB is unable to review claims concerning other members of the Applicant’s command. Each discharge is reviewed on a case by case basis and on it’s own merit.  The NDRB reviews all Applicant’s request to ensure they are proper and equitable.  The type of discharge awarded the Applicant was appropriate for the offenses he committed.  The NDRB determined an upgrade was not warranted.

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 

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.

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