ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20120501
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)	20080304 - 20080608  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20080609	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20110204	Highest Rank:  
Length of Service:    Year(s)    Month(s)  27  Day(s)
Education Level:  	AFQT:  63
MOS:  3043
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle   

Periods of UA/CONF:  

NJP:  

- 20090311:	Article  (Failure to obey order or regulation)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20081203:	For violation of Article 92 in that on 20081203 at approximately 0930, you were found inside the PX aboard Camp Johnson in a Physical Fitness Uniform.  Camp Lejeune Base Order 1020.8V PG 1 Enclosure (1) states that PT Uniforms/swim attire in main exchanges commissaries and area exchange FACs are not authorized. 

- 20090422:	For repeated loss of your DOD Common Access Card.

- 20100330:	For poor conduct and your inability to maintain proper accountability of your rifle, specifically on 20100324 once you got off the bus you immediately lost track of your rifle; your rifle was not located until over an hour later when another Marine brought it forward.  Additionally on 20100329 you again left your rifle unattended.  This time you went to the head to shower and you left your weapon in an empty hootch that had no Marines or guards; when a SNCO checked your hootch, he discovered it was empty but there was an unsecured rifle; he then confiscated the rifle and turned it into the Battalion COC so that it can be properly secured.

- 20100503:	For specifically you have been operating a vehicle onboard MCB Camp Pendleton without the required documentation. Prior to a battalion 72 all of the detachments were required to complete vehicle inspections; during the inspection it was revealed that you have been operating two different vehicles aboard the base without proper insurance.

- 20100602:	For concerning the ongoing pattern of your inability to be on time to your appointed place of duty, specifically on 20100528 you did not arrive at work until 0740 although you were counseled on this you failed to take corrective action and were late again on 20100602; this time you did not arrive at work until 0755.

- 20110124:	For continued minor disciplinary infractions and violation of Military Protective Order.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “MARCORSEPMAN 6210.3”

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.	The Applicant contends her command treated her unfairly.
2.	The Applicant contends she was discharged improperly while waiting to go to court-martial on charges she claims she was innocent of.
3.	The Applicant contends she served honorably and does not believe she committed a pattern of misconduct.

Decision

Date:  20130221		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 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   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, one specification of failure to stop at stop sign and one specification of speeding 60 mph in a 35 mph zone).  At the time of her discharge, the Applicant was pending a Summary Court-Martial for violations of UCMJ Article 86 (Absence without leave, 1 specification of less than 24 hours), Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer, 1 specification of disrespectful language toward a Corporal), and Article 92 (Failure to obey order or regulation, 1 specification of failure to obey an order to report at prescribed time).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  The NDRB did not have the Applicant’s 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.  She was not entitled to an administrative separation board.

:  (Decisional) ()  .  The Applicant contends her command treated her unfairly.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated her unfairly.  After reviewing her records, the NDRB determined that quite the opposite was true in that her command treated her very fairly, gave her multiple opportunities to correct her poor performance and conduct, and recommended a very lenient characterization of service when she was properly discharged for a Pattern of Misconduct.  During the Applicant’s two years and eight months of service, the Applicant received six retention warnings, was found guilty at an NJP of committing a serious offense (violation of Article 92 warrants a punitive discharge if adjudicated at a Special or General Court-Martial), and was pending a Summary Court-Martial for violating Articles 86, 91, and 92 at the time of her discharge.  Misconduct of her severity and frequency typically results in an Under Other Than Honorable Conditions characterization.  However, her command, after providing opportunities to correct her behavior in new units and environments, ultimately opted for a lenient administrative discharge and a lenient recommendation for a General characterization.  The NDRB found the characterization of the Applicant’s discharge was very equitable and determined an upgrade was not warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends she was discharged improperly while waiting to go to court-martial on charges she claims she was innocent of.  There is nothing improper in a command seeking the administrative separation of a Marine for cause, even when charges are pending adjudication at court-martial.  The commander has discretion in how he adjudicates violations of good order and discipline.  In the Applicant’s case, her command opted for a lenient administrative discharge instead of adjudicating her case at a court-martial that could have resulted in a more unfavorable characterization of service at discharge.  Relief denied.

:  (Decisional) ()  .  The Applicant contends she served honorably and does not believe she committed a pattern of misconduct.  The Applicant’s service record and record of disciplinary infractions clearly met the standard for separation for a Pattern of Misconduct per paragraph 6210.3 of the Marine Corps Separation and Retirement Manual that requires a minimum of two incidents in a current enlistment for a Pattern of Misconduct.  Her NJP and six retention warnings clearly met this standard.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s poor record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of her conduct or performance of duty outweighed the positive aspects of her service record, and the awarded characterization of service was warranted.  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