ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20080903
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)	20040430 - 20040601  	Active:	USMCR	20040602 - 20040701  
	USMCR (DEP)	20051121 - 20051127  

Period of Service Under Review:
Date of Enlistment:  20051128	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20071026	Highest Rank:  
Length of Service:    Year    Months   29  Days
Education Level:  	AFQT:  51
MOS:  1391
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    CoA

Periods of UA/CONF:  

NJP:  
- 20070501:	Article 90 (Assaulting or willfully disobeying superior commissioned officer)
	Article 92 (Failure to obey order or regulation)
	Awarded:     Suspended:  

SCM:  
- 20070626:	Article 111 (Physically controlling a vehicle while drunk),  2 specifications
	Article 90 (Disobey lawful order)
	Article 134 (Breaking restriction)
	Sentence:   

SPCM:      CC:  

Retention Warning Counseling:  

- 20070501:	For assaulting or willfully disobeying a superior commissioned officer and failure to obey an order or regulation for violating a military protective order not to have any contact with his wife, put in place by the Commanding Officer.  This kind of behavior will not be tolerated.  Your performance during this period, due to your lack of judgment and dependability is unsatisfactory.  This is not the manner in which a Marine is expected to conduct himself.

- 20070716:	For assaulting or willfully disobeying a superior commissioned officer, drunken or reckless operation of a vehicle, aircraft, or vessel, violating restriction by drinking, and operating a vehicle and getting into an accident while intoxicated.  This kind of behavior will not be tolerated.  Your performance during this 

	period due to your lack of judgment and dependability is unsatisfactory.  This is not the manner in which a Marine is expected to conduct himself.

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status: 		Community Service:  		References:  		
              Additional Statements: 
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

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 90, 92, and 111.

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

Applicant’s Issues

1.  Reenlistment opportunity.
2.  Denied medical treatment.
3.  No reason for NJP and court-martial.

Decision

Date:  20090129		Location: Washington D.C.	 Representation: 

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

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 this Issue.

:  ()  .   The Applicant contends he is entitled to a discharge upgrade because he was denied medical treatment after being told he was unfit for duty.  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 and one SCM for violations of the Uniform Code of Military Justice (UCMJ): Article 90 (Willfully disobeyed a lawful order from a superior commissioned officer); Article 92 (Disobeying a lawful order); Article 111 (Drunk driving); and Article 134 (Breaking restriction). Violation of Article 90, Article 92, and Article 111 are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not refer the Applicant for a punitive discharge but held a SCM and subsequently processed him for an administrative discharge. 

The record of evidence does not support the Applicant’s contention he was denied medical treatment.  The Applicant’s medical record shows the Applicant was seen by medical personnel regularly, especially between December 2006 and June 2007 when his NJP and SCM were held, for a variety of reasons including a required mess duty physical, physical ailment and mental health treatment.  The NDRB specifically notes the Applicant was admitted to the Mental Health Unit at Balboa Naval Hospital during May 2007 for observation after making suicidal threats but was not diagnosed with a condition relieving him of being responsible for his actions or which indicated he should not be held accountable for his action.  More importantly, the record shows the Applicant was released from the hospital and placed in pre-trial confinement in the brig.  The NDRB determined an upgrade based on the Applicant’s contention of lack of medical treatment would be inappropriate.

:  ()  .    The Applicant contends he is entitled to a discharge upgrade because there was no reason for his NJP and court-martial.  As described under Issue 2, the Applicant has a substantial record of misconduct. The record of evidence includes a letter from the Applicant’s commanding officer dated 6 Jul 2007 requesting administrative separation of the Applicant which includes the following statement, which is quoted at length for clarity:

“2.  Private Greene’s problems first manifested themselves while he was deployed with the 13th MEU. The ARG had not even reached Hawaii, when the MEU command element decided to send him back for sending threatening messages to his spouse. Private Greene was issued an MPO once he returned to the command in February 2007.  Shortly after being issued the MPO, Private Greene violated the MPO and made physical contact with his spouse.

3. Private Greene was found guilty of violating his MPO at non-judicial punishment and was reduced to Private First Class, restricted to the barracks for 30 days and given 30 days extra duties.  Less than a week into his restriction, Private Greene drank alcohol (despite being on restriction), attempted to drive a vehicle while intoxicated, and was in a car accident before he reached the exit of the barracks parking lot…”

The NDRB determined the record of evidence clearly shows the Applicant had a pattern of misconduct and the awarded discharge characterization was appropriate; an upgrade 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