ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20100929
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)	19960307 - 19960520  	Active:	 19960521 - 20031013 HON
				USMC 20031014 - 20070808 HON

Period of Service Under Review:
Date of Current Enlistment:  20070809	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090808	Highest Rank:  
Length of Service:    Years    Months  00  Days
Education Level:  	AFQT:  66
MOS:  6257/8012/6012/6013
Proficiency/Conduct Marks (# of occasions):  N/A / N/A	Fitness Reports:  AVAILABLE

Awards and Decorations (per DD 214):	Rifle EX Pistol EX GCM (3) SSDR (4) ICM (2) GWOTEM GWOTSM AFEM NDSM NUC (2) PUC LOA (3) COC (2) MM (2) 

Periods of UA/CONF:  

NJP:  1

- 20090701:	Article 111 (Drunken or reckless operation of a vehicle, arrested at 0342 on 20090614 and charged with open container and DUI.  Refused BAC test)
	Awarded: FOP RESTR   Suspended:  FOP 

SCM:  NONE	SPCM:  NONE	CC:  NONE 

Retention Warning Counseling:  5

- 20071015:	For failure to report to duty as Squadron Staff Duty Officer on 20071008.  As a result of your actions, another SNCO had to be contacted to assume your duty.  You further complicated matters by having incorrect recall information on the recall roster, which made it impossible to contact you.  You are reminded that as a SNCO your conduct must be above reproach at all times.  You are charged with setting the example for your subordinates to follow.  This type of behavior is unacceptable and will not be tolerated. 

- 20080225:	For inappropriate financial dealings with a subordinate Marine.  Acquired a $2,500 personal loan from a Sergeant and failed to honor the payment agreement.

- 20080307:	For numerous unauthorized absences, failure to obey orders, alcohol-related incident, failure to be at appointed place of duty, inappropriate financial dealings with subordinates, and driving under the influence (DUI) of alcohol.  From 4 Jun 99 to present date, I have received two NJPs and eight negative Page 11 entries.  The two NJPs and six of the negative Page 11 entries have been as a Staff Sergeant.  

- 20090519:	For failure to pass the 1st semi-annual PFT for 2009 on 20090514 (run time 31:34 with 29:00 min to pass). 

- 20090707:	For violation of UCMJ Article 111, reckless operation of a vehicle that resulted in your recent NJP. 

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19960521 UNTIL 20070808”

The NDRB will recommend to the Commandant of the Marine Corps 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.

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

Applicant’s Issues

1.	Applicant seeks a discharge upgrade to re-enlist in the U.S. Armed Forces.

Decision

Date:  20120104		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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included five 6105 retention counseling warnings and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken or reckless operation of a vehicle, arrested at 0342 on 20090614 and charged with open container and DUI, refused BAC test).  Based on the offense committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing (for pattern of misconduct and commission of a serious offense) using the administrative board procedure on 14 Jul 2009, the Applicant elected his rights to consult with a qualified counsel and submit a written statement, but waived his right to request an administrative separation board.  The Applicant was separated from the Marine Corps just prior to his end of active obligated service, which was midnight on 8 Aug 2009, with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct.

In his endorsement of the Applicant’s administrative separation package, the Commanding Officer stated “(Applicant) has repeatedly shown poor judgment and leadership as documented in his multiple couselings for failing to pass a PFT and being assigned to the Remedial Conditioning Program (RCP) and for various UCMJ violations including unauthorized absences, alcohol-related incidents, inappropriate financial dealings with subordinates, and orders violations.  Throughout his Marine Corps career, (the Applicant) has demonstrated a total disregard for rules and regulations and failed to rehabilitate himself despite the multiple opportunities he has been given by his commands.”  Additionally, in summarizing the 7 Jul 2009 administrative separation interview with the Applicant, his CO stated “(The Applicant) has been given numerous chances to do the right thing.  He has not only failed the Marine Corps, but also himself.  It is in the best interest of the Marine Corps that he be separated prior to his EAS of 8 Aug 2009, with a reenlistment code of RE-4.”

:  (Nondecisional) The Applicant seeks a discharge upgrade to re-enlist in the U.S. Armed Forces.  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 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.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  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 Disabled 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), 2 Navy Annex, Washington, DC 20370-5100 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