ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20131011
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)	20061220 - 20070107  	Active:	  20070108 - 20090915  

Period of Service Under Review:
Date of Current Enlistment:  20090916	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20110909	Highest Rank:  
Length of Service:    Years    Months  24  Days
Education Level:  	AFQT:  81
MOS:  8972
Proficiency/Conduct Marks (# of occasions):  1.6 () /1.6 ()	Fitness Reports:  

Awards and Decorations (per DD 214):	Rifle  Pistol      LoA (2)

Periods of UA/CONF:  

NJP:  

- 20110527:	Article  (Absence without leave; failed to show up at appointed place of duty)
	Article  (False official statements; made a false official statement to GySgt W___ stating you were at Camp Lejeune Naval Hospital undergoing physical therapy)
	Awarded:      Suspended:    

- 20110622:	Article  (Insubordinate conduct toward warrant, noncommissioned, petty officer; became belligerent when asked to remove his earring)
	Article  (Failure to obey order or regulation, 2 specifications)
	Specification 1: Wearing an earring while in civilian attire
	Specification 2: Showed up to work with an unshaven face
	Article  (False official statement; made false official statement to the Commanding Officer)
	Awarded:      Suspended:   

- 20110720:	Article  (General Article, 2 specifications)
	Specification 1: Consumed alcohol at barracks while in a restricted status
	Specification 2: Was in the parking lot of barracks after the hours of 2145 while in a restricted status
	Awarded:        Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20110322:	For violation of UCMJ: Article 86, on or about 11 March 2011

- 20110601:	For violation of UCMJ Articles 86 and 107; reference NJP dated 27 May 2011

- 20110624:	For violation of UCMJ Articles 91, 92x2, and 107; reference NJP dated 22 June 2011

- 20110706:	For pattern of misconduct

- 20110721:	For violation of UCMJ Article 134x2; reference NJP dated 20 July 2011

Administrative Corrections to the Applicant’s DD 214

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

  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 070108 UNTIL 20091915”
  “2007 01 08”
  “04 08 02”
	
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 qualify for Department of Veterans Affairs (VA) medical benefits.
2.	The Applicant contends his discharge is inequitable based on his record of conduct prior to his first NJP in May 2011.
3.	The Applicant contends his command used him as an example for others.
4.	The Applicant contends his NJP punishments were not apportioned.
5.	The Applicant contends the death of his mother and subsequent alcohol abuse contributed to his misconduct.

Decision

Date:  20140410		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 in his current enlistment included  6105 counseling warnings and  nonjudicial punishments (NJPs) for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer), Article 92 (Failure to obey order or regulation, 2 specifications), Article 107 (False official statements, 2 specifications), and Article 134 (General Article, 2 specifications).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  

:  (Nondecisional)  The Applicant seeks an upgrade to qualify for VA medical benefits.  The Applicant also stated that he was not provided a VA physical prior to separation and is therefore not eligible for disability compensation or any other 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.  Also, whether he received a separation physical or not has no bearing on the propriety or equity of the discharge.  Even if he did not receive a separation physical, this should in no way affect his VA disability determination.  The Applicant is encouraged to contact his local VA representative again to schedule a Compensation & Pension Exam. 

:  (Decisional) ()  .  The Applicant contends his discharge is inequitable based on his record of conduct prior to his first NJP in May 2011.  The Applicant received an Honorable characterization of service for his first enlistment from January 2007 to September 2009.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During his second enlistment, he received 5 retention warnings and was found guilty of multiple UCMJ violations at 3 NJPs.  Since 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 in his second enlistment, 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.

:  (Decisional) ()  .  The Applicant contends his command used him as an example for others.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  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 had a pattern of misconduct in his second enlistment, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted.  Relief denied.

Issue 4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his NJP punishments were not apportioned.  The NDRB conducted a complete review of the Applicant’s NJPs, punishments, and discharge process and found no improprieties or inequities with respect to apportionment or due process.  His NJPs were not run consecutively and the punishments were appropriate.  Relief denied.

5:  (Decisional) ()  .  The Applicant contends the death of his mother and subsequent alcohol abuse contributed to his misconduct.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Marines receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistments, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his 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