ex-, USMC 

Current Discharge and Applicant’s Request

Application Received:  20110113
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)	20050811 - 20050828  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050829	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20090724	Highest Rank:  
Length of Service:    Year(s)    Month(s)  26  Day(s)
Education Level:  	AFQT:  70
MOS:  6062
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle    LoA MM

Periods of UA/CONF:  

NJP:  

- 20071114:	Article  (Drunken or reckless driving with a BAC 0.20, 20071110)
	Article 111 (Drunken or reckless driving, hit a vehicle and failed to stop, 20071110)
	Awarded: ORAL  (to E-2) FOP RESTR EPD   Suspended:  None

- 20080909:	Article  (Disorderly conduct of a nature to bring discredit upon the armed forces, 20080704) 
	Awarded: PUNITIVE REPRIMAND  (to E-1)  (60 days)   Suspended:   (suspend 6 mos)

SCM:  		SPCM:  

Civil Arrest:
	20081222:  Operating a vehicle while intoxicated with a BAC of 0.17.

Civil Conviction: 
	20080813:  Obstructing justice/resisting arrest.

Retention Warning Counseling:  

- 20070410:	For your violation of Article 92 due to the possession of unauthorized items in your barracks room.  Your judgment was lacking and not of the standard expected of a Marine. 

- 20071114:	For your violation of Article 111 x 2 of the UCMJ to wit: Drove a vehicle with a BAC of 0.20 and failed to stop after hitting another vehicle.

- 20080909:	For your violation of Article 134 of the UCMJ to wit: You displayed disorderly conduct in public, which was of a nature to bring discredit upon the armed forces.   

- 20081014:	For failure to follow and compete your alcohol aftercare program. 

- 20090109:	For your pending adjudication by civilian authorities for DUI, as evidenced by the Notification of Preliminary Suspension of Base Driving Privileges dated 6 January 2009.  

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 P1900.16E), 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, Articles 92 and 111.  

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

Applicant’s Issues

1.	Applicant contends her discharge was improper and that it should have been based on medical issues.
2.	Applicant contends her discharge was improper/inequitable due to her misconduct incidents being approximately one year apart and because the misconduct had no effect on her work performance.  

Decision

Date:  20120328		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 Board completed a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included five 6105 counseling warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, possessing unauthorized items in her barracks room, USMC property from her workcenter), Article 111 (Drunken or reckless operation of a vehicle, 2 specifications: Driving a vehicle with BAC 0.20, 10 Nov 2007; and collided with a vehicle and failed to stop while driving under the influence, 10 Nov 2007), and Article 134 (Disorderly conduct, involvement with civil authorities, 4 Jul 2008).  The record also revealed one civil conviction (13 Aug 2008) for obstructing justice/resisting arrest and one civil arrest for driving while intoxicated (BAC 0.17).  Additional documented violations of UCMJ Article 92 (Failure to obey an order or regulation, 2 specifications) and Article 107 (False official statement, 2 specifications) were also found in the record, but no evidence of official adjudication could be found.  The records also indicate the Applicant had three enlistment waivers for offenses she committed prior to entering the Marine Corps, which included possession of drug paraphernalia (Mar 2003), illegal use of marijuana (two times), and driving under the influence of alcohol (Jul 2004).  Based on the repeated and serious nature of the offenses committed by the Applicant, her command administratively processed her for separation.  When notified of administrative separation processing (for Alcohol Rehabilitation Failure, Pattern of Misconduct, and Commission of a Serious Offense) using the  procedure on 4 Mar 2009, the Applicant exercised her rights to consult with a qualified counsel and request an administrative separation board, but waived  right to submit a written statement.

The Applicant received an administrative board hearing on 15 Apr 2009 that resulted in the following findings: (By 3-0 vote) via a preponderance of the evidence, the Applicant was guilty of all acts alleged; (by 3-0 vote) the Applicant should be separated without suspension of the discharge; (by 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions discharge; and (by 3-0 vote) the Applicant should not be transferred to the Individual Ready Reserve (IRR).  On 15 Jun 2009, the Commanding Officer, Marine Aircraft Group 39 endorsed the Applicant’s administrative separation package stating, “The basis for this proposed administrative separation is (the Applicant’s) habitual pattern of misconduct.  Despite being given extraordinary support from her chain of command, she continues to make poor decisions.  In November of 2007, SNM faced NJP for a hit and run accident, another NJP in September of 2008 for Disorderly Conduct, and a civilian arrest for Operating a Motor Vehicle while Intoxicated (her second DUI within one year).  On 15 Apr 2009, an Administrative Discharge Board convened and recommended (the Applicant) be discharged with an other than honorable characterization of service.  On 20 May 2009, the Applicant’s Commanding Officer concurred with the Admin Board findings, stating ‘(The Applicant) is a disruption to the good order and discipline of her unit.  I have reviewed the Senior Member’s report and agree with the board’s findings and recommendations that (the Applicant) be discharged from the United States Marine Corps with an other than honorable conditions characterization of service.’ ”  On 10 Jul 2009, the Separation Authority concurred with the findings and recommendations of the Admin Board and directed that the Applicant be separated from the Marine Corps with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).  The Applicant was discharged as directed on 24 Jul 2009.

:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends her discharge was improper and that it should have been based on medical issues.  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.  Moreover, Department of Defense 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.  Relief denied.

:  (Decisional) ()  .  The Applicant contends her discharge was improper/inequitable due to her misconduct incidents being approximately one year apart and because the misconduct had no effect on her work performance.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct (both on and off duty) during the current enlistment, including the reason for separation.  Per the Marine Corps Separation and Retirement Manual, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record.  A discharge Under Other Than Honorable Conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s record of service included five 6105 retention warnings, two NJPs, a civil arrest, and a civil conviction for offenses that included failure to obey an order or regulation (Article 92), two separate incidents of driving under the influence of alcohol (Article 111), obstructing justice/resisting arrest (Article 134 - Disorderly conduct), and failure to follow substance abuse/alcohol rehabilitation treatment aftercare.  Violations of Articles 92 and 111 are considered serious offenses and are punishable by a Bad Conduct Discharge or Dishonorable Discharge and 6 months imprisonment if awarded at trial by special or general court-martial.  After careful examination of and deliberation on the available evidence, the Board determined that the Applicant’s discharge was proper and equitable and in accordance with the applicable orders and directives in effect at the time of her separation.  Her discharge was completely in line with what others received for similar misconduct.  Relief denied.

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