ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20130515
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)	20080701 - 20090208  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20090209	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20130208	Highest Rank:  
Length of Service:    Year(s)    Month(s)  00  Day(s)
Education Level:  	AFQT:  32
MOS:  0811
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

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

Periods of CONF:  

NJP:  

- 20100326:	Article 108 (Military property of United States - Loss, damage, destruction, or wrongful disposition) 
	Awarded:    Suspended:  

- 20110713:	Article  (Absence without leave, failed to go to appointed place of duty on 0700, 20110705)
	Awarded:    Suspended:  

- 20110921:	Article 113 (Misbehavior of sentinel)
	Awarded:   RESTR EPD Suspended:  RIR 

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20090910:	For scholastic deficiencies while attending the MCCCC 8-09 class that have resulted in academic recycle to the next scheduled class.

- 20090917:	For violation of Article 86 in that SNM failed to be present for fire watch at the Marine Battery, Ft Sill, OK on 20090917

- 20090921:	For violation of Article 86 in that SNM failed to be present for fire watch at the Marine Battery, Ft Sill, OK on 20090918

- 20091102:	For violation of Article 92 in that SNM disobeyed a direct order from the Battery Gunnery Sergeant.  

- 20091102:	For violation of Article 86 in that SNM absented himself from his appointed place of duty at Ft Sill, OK on 20091030   

- 20100330:	For NJP held on 20100306 for violation of Article 108 of the UCMJ  

- 20101014:	For failure to maintain accountability of government property, an issued meal card    

- 20120412:	For being late for check in off of your annual leave and not being within proper Marine Corps hygiene regulations.  According to your leave request your return time was recorded at 12:12; this is unacceptable especially since you did not inform anyone in your chain of command about your tardiness.  At the same time upon returning to the battery you did not have a regulation haircut.

Administrative Corrections to the Applicant’s DD 214

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

	  “MISCONDUCT”
	
The NDRB will recommend to the Commandant of the Marine Corps, MMSB-13, 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 seeks an upgrade to enhance employment, educational, and reenlistment opportunities.
2.    The Applicant contends he served honorably, including a tour in Afghanistan, despite a great deal of hazing and unjust treatment.
3.	The Applicant contends his battalion commander told him he would get an Honorable discharge, and his final travel orders and check-out sheet say he is getting an Honorable discharge.

Decision

Date:  20140116		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 86 (Absence without leave, 1 specification), Article 108 (Military property of United States - Loss, damage, destruction, or wrongful disposition, 1 specification), and Article 113 (Misbehavior of sentinel, 1 specification).  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, or appear before an administrative separation board.  However, a Separation Code of GKA1 on his DD Form 214 indicates he elected his right to appear before an administrative separation board.

:  (Nondecisional)  The Applicant seeks an upgrade to enhance employment, educational, and reenlistment opportunities.
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.  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.  Additionally, 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.

:  (Decisional) ()  .  The Applicant contends he served honorably, including a tour in Afghanistan, despite a great deal of hazing and unjust treatment.  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 his issue.  There is no documentation in his service record, nor did the Applicant provide any documentation, to indicate he was hazed or treated unjustly during his enlistment.  What is in his service record is documentation of a pattern of misconduct that started early in his enlistment and lasted until near the end of his enlistment.  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 record of service, which included a tour in 

Afghanistan, three NJPs, and eight retention warnings, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his battalion commander told him he would get an Honorable discharge, and his final travel orders and check-out sheet say he is getting an Honorable discharge.  Based upon significant and repetitive misconduct during his enlistment, the Applicant’s command determined he was no longer fit to serve and notified him of administrative separation processing.  The Applicant met the requirements for administrative separation for Misconduct (Serious Offense) and Misconduct (Pattern of Misconduct).  The NDRB did not have the Applicant’s notification of administrative separation proceedings, however, his GKA1 Separation Code on his DD Form 214 indicates he elected his right to appear before an administrative separation board where he would have had the opportunity to present his case for retention or a more favorable discharge characterization.  The administrative separation board and the battalion commander both make recommendations to the Separation Authority as to whether the Applicant met the requirements for separation due to misconduct, and they also recommend a discharge characterization.  Neither the administrative separation board nor the battalion commander makes the final decision concerning the discharge characterization.  Additionally, the check-out sheet and travel orders are prepared by administrative clerks who are not involved in administrative separation proceedings and are not final authorities on one’s discharge characterization.  It is not unusual to see incorrect discharge characterizations on travel orders or check-out sheets.  Ultimately, the Separation Authority (Commanding General, 2nd Marine Division) determined the Applicant met the requirements for administrative separation for a Pattern of Misconduct and directed that he be discharged Under Honorable Conditions (General).  After a complete review of the records, the NDRB did note one administrative error on the Applicant’s DD Form 214.  Block 28 (Narrative Reason for Separation) should say “Misconduct” vice “Pattern of Misconduct” per the Marine Corps Separation and Retirement Manual.  His General discharge characterization and reenlistment code of RE-4, however, are correct.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a pattern of misconduct, that separation from the Marine Corps was appropriate, and that an Under Honorable Conditions (General) discharge 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