Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. MD10-00447

ex-, USMC

Current Discharge and Applicant’s Request

Application Received:  20091116
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:	NONE		Active:	

Period of Service Under Review:
Date of Current Enlistment:  19970731	Age at Enlistment:  
Period of Enlistment:   Years   Months
Date of Discharge:  20000605	Highest Rank:  
Length of Service: 
	Active:       Year(s)    Month(s)  03  Day(s)
	Inactive:     Year(s)    Month(s)  01  Day(s)
Education Level:  	AFQT:  39
MOS:  2531
Proficiency/Conduct Marks (# of occasions):   () /  ()	Fitness Reports:  

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	  CC:  

Retention Warning Counseling:  

- 19980608:	For missing drill 5-6 June 1998 

- 19990110:	For missing drill 8-10 January 1999

- 19990209:	For unsatisfactory participation 

NDRB Documentary Review Conducted (date):	20040628
NDRB Documentary Review Docket Number:	MD04-00202
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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:	

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

Applicant’s Issues

1.	Change Reentry Code to one that will allow reenlistment in the military.
2.	Missed drills to assist family in crisis when prematurely born child almost died.  Therefore, requesting upgrade in discharge characterization to General (Under Honorable Conditions), change in narrative reason, and any other relief the NDRB deems appropriate.
3.	Post-service conduct warrants consideration

Decision

Date: 20101206         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 Applicant’s record of service included three 6105 counseling warnings for missing drills and his unsatisfactory participation with the Selected Marine Corps Reserve.  It did not reflect any non-judicial punishments, summary courts-martial, or special courts-martial for violations of the Uniform Code of Military Justice.  Based on the Applicant’s unsatisfactory drill participation,  command administratively processed  for separation.  When notified of administrative separation processing via certified mail, the Applicant receipted for the notification by signature, but did not respond.  Failure to acknowledge official certified mail constitutes acknowledgment and waiver of rights.

:  (Non-decisional).  The Applicant seeks a change to his reentry (RE) code so that he may reenlist in the military.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  Neither a less than fully honorable discharge nor an unfavorable RE code is, in itself, a bar to reenlistment.  A request for a waiver can be submitted through a recruiter during the processing of a formal application for reenlistment.  Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change an RE code.  Only the Board for Correction of Naval Records can make changes to RE codes.  

:  (Decisional) ()  .  The Applicant contends he stopped attending drill to assist his family in crisis when his prematurely born infant daughter almost died.  He further contends his discharge should be upgraded, narrative reason changed, and all relief deemed appropriate by the NDRB be granted.  The Applicant provided documentation describing special programs implemented by two former U.S. Presidents that would allow less than honorable discharges to be reviewed and upgraded.  He also provided legal information and gave historical accounts of service members receiving discharge relief after abandoning their military duties to deal with family issues and to prevent hardship.  However, this documentation, along with his testimony and the testimony of character witnesses and their statements focused only on the drills missed after his daughter was born, none of which were noted in his service record.  The missed drills that the command used as a basis for separation - properly documented in the Applicant’s service record - occurred prior to his daughter’s birth and his hardship contention.  The Applicant indicated he missed those drills because he was having marital problems at the time.  The NDRB recognizes serving in the U.S. Marine Corps is challenging.  However, most members of the Marine Corps serve honorably, therefore earning their Honorable discharge.  Although the Applicant is only seeking a General discharge, Commanders and Separation Authorities are tasked to ensure that Marines receive no higher characterization than is due.  The record reflects the Applicant had 32 unexcused drill absences within a seven-month period.  There is no evidence in the record, nor did the Applicant provide any evidence, to indicate he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the command leadership, command chaplain, medical or mental health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The Board determined an upgrade in characterization and change in narrative reason would be inappropriate.  Accordingly, relief denied.

:  (Decisional) () .  The Applicant contends that his post-service conduct warrants consideration.  He provided written statements and video testimony from witnesses attesting to his character and service to the community.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Unfortunately, the information pertaining to post-service activities that the Applicant provided, along with his DD Form 293, was not sufficient enough to thoroughly evaluate his post-service character and conduct to understand better his conduct during the entire period under review, especially the periods of absence prior to his child’s birth.  In addition to the photographs and character witness statements and testimony, the Applicant could have produced evidence of the following:  a verifiable continuous employment record; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and official transcripts reflecting attendance at or completion of higher education.  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 that the in-service misconduct was an aberration and was not indicative of the member’s overall character.  Relief denied.   

Summary:  After a thorough review of the available evidence, to include the Applicant’s testimony, character witnesses, his summary of service, official  record entries, and discharge process, the Board found that the discharge was proper and equitable as issued.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain .

The Applicant has exhausted all opportunities to petition the NDRB for relief.  He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100 for further review using DD Form 149.  

Pertinent Regulation/Law

A.  Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 
18 August 1995 until 31 August 2001.

B.  Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C.  Table 6-1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995, Guide for Characterization of Service.

D.  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.

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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water