ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120207
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)	20071221 - 20080113  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20080114	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20120106	Highest Rank:  
Length of Service:    Year(s)    Month(s)  23  Day(s)
Education Level:  	AFQT:  95
MOS:  6042
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   (2)    CoA

Periods of UA/CONF:  

NJP:  
- 20090528:	Article  (Failure to obey order or regulation)
	Article  (Drunken or reckless operation of vehicle, aircraft, or vessel)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20081223:	For failure to obey orders.  On 20081129, you failed to obey MCBJ/IIIMEFO 1050.7.  Specifically, you had knowledge of MCBJ/IIIMEFO MEF policy as per chapter 2 para 5 and chapter 3, failed to obey the same, as a red card holder, by checking in with the duty NCO prior to 2400 and then leaving billeting to go out in Darwin, Australia after your liberty was secured. 

- 20090528:	For violations of Articles 92 and 111 for which I received NJP

- 20110909:	For poor judgment and lack of core values as a noncommissioned officer.  Your offenses include having an inappropriate relationship with a married women and making verbal threats to civilians.

- 20110923:	For poor judgment and repeatedly disobeying a direct order.  Your offenses include not maintaining the standard of living in your bachelor enlisted quarters room.

- 20111003:	For violations of Article 92, specifically violating SECNAVINST 5300.28E, paragraph 5.c by your admission on or about 20110709 to wrongfully using bath salts.

- 20111012:	For false official statement.  On 20111003, you made a rebuttal statement to a 6105 for violation of Article 92 in which you acknowledge that you made a false statement to your Commanding Officer.

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.	The Applicant seeks an upgrade to qualify for Department of Veterans Affairs (VA) education and service benefits.
2.	The Applicant contends that after charges referred to a Special Court-Martial for using “bath salts” were withdrawn for lack of evidence, his command placed multiple frivolous counselings into his record and administratively processed him for Misconduct (Drug Abuse) and a Pattern of Misconduct.
3.	The Applicant contends that after many procedural and scheduling irregularities with the Administrative Separation Board (ASB), the board returned a finding that the Applicant did not use drugs but decided that the frivolous counseling sheets warranted separation Under Other Than Honorable Conditions for a Pattern of Misconduct.
4.	The Applicant contends his record of service warrants consideration for an upgrade.

Decision

Date:  20130129		Location: Washington D.C.	 Representation: 

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

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 did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  6105 counseling warnings and one  for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 1 specification) and Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel, 1 specification).  Based on the offenses committed by the Applicant,  command administratively processed  for separation using the administrative board procedure and notifying him of administrative separation processing for Misconduct (Drug Abuse) and a Pattern of Misconduct.  The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  The NDRB, however, was able to discern that the Applicant requested to appear before an Administrative Separation Board, the results of which were not found in the record.  The Separation Authority reviewed the results of the ASB and the Applicant’s counsel’s Letter of Deficiency, determined the proceedings were proper and the discharge with a General characterization for a Pattern of Misconduct was warranted, and ordered the Applicant to be discharged. 

:  (Nondecisional) The Applicant seeks an upgrade to qualify for VA education and service benefits.  The VA determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants re-characterization 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.  Furthermore, 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. 

:  (Decisional) ()  .  The Applicant contends that after charges referred to a Special Court-Martial for using “bath salts” were withdrawn for lack of evidence, his command placed multiple frivolous counselings into his record and administratively processed him for Misconduct (Drug Abuse) and a Pattern of Misconduct.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) (MCO P1900.16F), effective 1 September 2001 until Present, provides the following for separations based on a Pattern of Misconduct:

“a.  A minimum of TWO incidents occurring within one enlistment is required.  Misconduct occurring in an extension of an enlistment is considered to be within one enlistment.  The infractions may be minor or more serious.  There must be discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  The misconduct need not have been the subject of NJP or military or civilian conviction.  Such incidents include, but are not limited to, an 

established pattern of minor unauthorized absences; an established pattern of dishonorable failure to pay just debts; or an established pattern of dishonorable failure to contribute adequate support to family members or comply with orders, decrees, or judgments of a civil court concerning support of family members.  The incidents of misconduct do not have to be of the same nature.  

b.  Separation processing may not be initiated until the Marine has been counseled per paragraph 6105.  The notification procedure contained in paragraph 6303 may be used if characterization of service under other than honorable conditions is not warranted.”

During the Applicant’s enlistment, he was found guilty at NJP of violating UCMJ Articles 92 and 111 and received six 6105 retention warning counselings.  Per the MARCORSEPMAN, the Applicant had a minimum of two incidents, received and violated 6105 warnings, and met the requirements for administrative separation processing for a Pattern of Misconduct.  After a complete review of the records and documentation submitted by the Applicant, and after reviewing the 6105 warnings, the NDRB determined the discharge for a Pattern of Misconduct was proper and the characterization of service of General was equitable.  The NDRB determined an upgrade was not warranted.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that after many procedural and scheduling irregularities with the ASB, the board returned a finding that the Applicant did not use drugs but decided that the frivolous counseling sheets warranted separation Under Other Than Honorable Conditions for a Pattern of Misconduct.  The NDRB conducted a detailed review of the ASB proceedings, Letter of Deficiency submitted by the Applicant’s counsel after the ASB, and the Separation Authority’s findings and determined the proceedings were proper and equitable.  Although the Applicant was notified of administrative separation processing for Misconduct (Drug Abuse), the ASB found that he did not meet this basis for separation but did meet the basis for separation for a Pattern of Misconduct.  They further recommended a characterization of service Under Other Than Honorable Conditions.  The Separation Authority, after reviewing the Letter of Deficiency and frequency and severity of the misconduct, determined the ASB proceedings were proper but lessened the recommended characterization of service to General (Under Honorable Conditions).  The NDRB determined all proceedings were proper, and the General characterization was equitable.  Relief denied.

Issue 4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his record of service warrants consideration for an upgrade.  The Applicant received overall average Proficiency and Conduct marks of 4.3/4.2, respectively, over his enlistment.  He also had an NJP and six 6105 retention warnings.  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 outweighed the positive aspects of the member’s service record.  After a complete review of the records, the NDRB determined the General discharge was equitable and was completely in line with what others received for similar service and misconduct.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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