Upgrade.Vet

USMC | DRB | 2006_Marine | MD0600897

Original file (MD0600897.rtf) Auto-classification: Denied

ex-PVT, USMC
MD06-00897

Current Discharge and Applicant’s Request :

Application Received:                               20 060620
Narrative Reason for Separation:                           misconduct-pattern of misconduct
Character of Service:
Discharge Authority :                                MARCORSEPMAN 6210.3
Last Duty Assignment/ Command at Discharge:       8 ^th engr spt bn 2d fssg clnc

Applicant’s Request:
         Narrative Reason change to:               hardship
         Characterization chang e to:
         Review Requested :                           ^{The Board, on its motion, advised the Applicant that it would conduct a documentary review of his discharge, and that regardless of whether or not relief was granted, the Applicant would retain the right for a personal appearance hearing provided that the Board received a new DD Form 293 petition within 15 years of the date of discharge.}
Representation:

Decision:

Date of Decision:                                             20 070709
The Discharge shall :

Regarding p ropriety , the Board found the discharge :
Regarding e quity , the Board found the discharge :
Vot e (characterization/reason)                      /
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package :

Applicant’s Issues as Summarized by the Board:

Equity – Youth and Immaturity

Summary of Service :

Prior Service:
Inactive: USMC R (DEP)                               19920617 - 19930607
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 19930608
Years Contracted :                                   ;
Date of Discharge:                                  19950516
Length of Service:                                  01 Yrs 11 Mos 09 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:
Days Unauthorized Absence:
Days Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 54
MOS:                                                   1391
Highest Rate/Rank:                                   LCpl

Performance Evaluation Averages (number of marks):
P roficiency :                                         3.6 (5)
Conduct :                                              3.1 (5)
Extracted from: SJA Supporting Documents Other:

Fitness reports were available to the board for review for service as E-5/Sergeant or higher:

Awards and Decorations (as listed on the DD Form 214):
RIFLE BADGE 2D AWARD EXPERT, NATIONAL DEFENSE SERVICE RIBBON, LETTER OF APPRECIATION, CERTIFICATE OF COMMENDATION

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19941020 :        Counseling: Advised of deficiencies in performance and conduct ( Financial irresponsibility specifically failure to maintain sufficient funds to cover debts, failure to obey BnO P11101.3 concerning visitors in the barracks, Article 86 unauthorized absence. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19941116 :        NJP for violation(s) of UCMJ:
         Article 86: On or about 0700, 19941102, absent h er self without authority from her unit and did remain so absent until 0830, 19941102.
         Award: Forfeiture of $ 1 00.00 for 1 month, restriction and extra duty for 14 days. Forfeiture suspended for 30 days.
         Not appealed.

19950221:        Counseling: Advised of deficiencies in performance and conduct (Failure to maintain to personal hygiene, failing the Company Commander service alpha inspection 19950210.), necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action.

19950222 :        NJP for violation(s) of UCMJ:
         Article 86 : Unauthorized absence from 1101 - 1125, 19950221.
         Award: Forfeiture of $ 478 .00 for 2 months, restriction and extra duty for 45 days, reduction to E- 2 . Forfeiture suspended for 4 months.
         A ppealed 19950227. Appeal denied 19950309.

19950327:        Forfeiture of pay awarded at NJP on 19950222 vacated.

19950327 :        NJP for violation(s) of UCMJ:
         Article 92 : On or about 1300, 19950311 disobey a lawful order or regulation (driving on a base revocation).
         Article 134 : On or about 19940206, 19941207, 19941210 and 19941220 write 4 checks totaling the amount of $164.71 without maintaining sufficient funds in the Navy Federal Credit Union.
         Award: Forfeiture of $ 427 .00 for 2 month s , restriction and extra duty for 45 days , reduction to E- 1 . Forfeiture for 1 month suspended for 6 months.
         Not a ppealed.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        19950426
Basis for Discharge :

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation :
Record Supports Narrative Reason :
Date Applicant R esponded to N otification:                 19950426
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)
GCMCA Review

Recommendation of Commanding Officer (date):     19950426
SJA review (date):                                   19950511
Discharge directed by (date):                       COMMANDING GENERAL, 2D FORCE SERVICE SUPPORT
                                                      GROUP 19950607
Narrative reason directed :
Characterization directed:
Date Applicant Discharged:                         19950516

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            3
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             1
Other Documentation (Describe Below)                      0

Total Number of Pages:                            4

D escription of Other Documentation:




Applicant’s Issues as Summarized by the Board:

Equity – You th and Immatur ity

The Applicant contends that her problems in the Marine Corps can be attributed to her immaturity and failure to adjust to the stressors she faced while in the military. The NDRB recognizes that serving in the U.S. Marine Corps is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Marine Corps serve honorably and therefore earn their honorable discharges. In fairness to those members of the Marine Corps, commanders and separation authorities are tasked with ensur ing that undeserving Marines receive no higher characterization than is due. The evidence of record did not show that the Applicant was either not responsible for h er conduct or that s he should not be held accountable for h er actions. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant requested an upgrade to the characterization of her service. When the service of a member of the U.S. Marine Corps has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by two retention warnings and two nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), Articles 92 (failure to obey an order), 134 (making and uttering worthless checks by dishonorably failing to maintain funds) . Violations of UCMJ Articles 92 and 134 are considered serious offenses for which a punitive discharge is authorized at courts martial. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Marine Corps and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, ( MCO P1900.16D), effective 27 June 1989 until 17 August 1995.

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.

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation s of UCMJ Article s 92 (failure to obey a lawful order), 134 (making and uttering worthless checks by dishonorably failing to maintain funds).

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe that 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. 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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.

Employmen/Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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

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USMC | DRB | 2006_Marine | MD0600897

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