Upgrade.Vet

USMC | DRB | 2006_Marine | MD0600970

Original file (MD0600970.rtf) Auto-classification: Denied

ex-PVT, USMC
MD06-00970

Current Discharge and Applicant’s Request :

Application Received:                               20 060713
Narrative Reason for Separation:

Character of Service:
Discharge Authority :                                marcorsepman 6210.3
Last Duty Assignment/ Command at Discharge:       SACO soi trngcmd cAMP lEJEUNE NC

Applicant’s Request:
         Narrative Reason change to:               N/A
         Characterization chang e to:
         Review Requested :
Representation:

Decision:

Date of Decision:                                             20 070709
The Discharge shall remain:

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:
Discharge Package Complete:

Applicant’s Issues as Summarized by the Board:

1. Equity – Was not assigned to the MOS promised by recruiter
2. Equity – Youth and Immaturity
3. Equity – Minor nature of offenses given brevity of service did not warrant negative characterization
4. Equity – Post Service

Summary of Service :

Prior Service:
Inactive: USMC R (DEP)                               20020711 - 20030707
Active: None
Period of Service Under Review :
Date of Enlistment:                                 20030708
Years Contracted :                                   ;
Date of Discharge:                                  20040419
Length of Service:                                  00 Yrs 09 Mos 09 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:                      28
                                                      7

Education Level:
Age at this Enlistment:
AFQT:                                                 43
MOS:                                                   9900
Highest Rate/Rank:                                   Pvt

Performance Evaluation Averages (number of marks):
P roficiency / Conduct :                     N/A
         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):
MARKSMAN RIFLE BADGE, NATIONAL DEFENSE SERVICE MEDAL

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

20031108:        Applicant to unauthorized absence this date.

20031116:        Applicant from unauthorized absence this date (no further info.)

20031124 :        NJP for violation(s) of UCMJ:
         Article 86: On or about 1700, 20031108, without authority, absent himself from his appointed place of duty and did remain so absent until 1800 20031116.
         Award: Forfeiture of $575 .00 for 2 months, restriction for 60 days.
         Not appealed.

20031125 :        Retention Warning: Advised of deficiency ( Your violation of Article 86 Unauthorized absence from 1700 20031108 to 1600, 20031116. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20031126:        Applicant to unauthorized absence this date.

20031215:        Applicant from unauthorized absence this date (no further info.)

20040123:        Applicant to pretrial confinement. [Extracted from DD Form 214, Block 18.]

20040129:        A pplicant from pretrial confinement . [Extracted from DD Form 214, Block 18.]

2004013 0 :        Summary Court-Martial.
         Charge I : V iolation of the UCMJ, Article 86:
         Specification: . On or about 0500, 20031125, without authority, absent himself from his appointed place of duty and did remain so absent until on or about 1700, 20031215.
         Charge II: Violation of the UCMJ, Article 134:
         Specification: On or about 0500, 20031125 break restriction.
         Finding: To Charges and the specifications thereunder, guilty.
         Sentence: Forfeiture of $795.00, confinement for 30 days.
         CA action 20040209: Sentence approved and ordered executed.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        NOT FOUND IN RECORD
Narrative Reason(s):
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation :
Record Supports Narrative Reason :
Date Applicant R esponded to N otification:                 NOT FOUND IN RECORD
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s)
GCMCA Review
Board Date :                                          n/a
Recommendation of Commanding Officer (date):     NOT FOUND IN RECORD
SJA review (date):                                   20040402
Discharge directed by (date):                       COMMANDING GENERAL, 20 040406
Narrative reason directed :
Characterization of directed:
Date Applicant Discharged:                         20040419

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:
         Service/Medical Record :                            1
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           0
         Employment :                                          24
         Health /Medical :                                     0
         Character Statements:                               10
         Criminal Records Checks:                                    3
         Additional Statements from Applicant:             5
Other Documentation      (Describe Below)                 8

Total Number of Pages:                            51

D escription of Other Documentation:
Letter to United States Senate
Letter from United States Senate
Letter from United States Senate
Letter from United States Senate
Letter from Department of the Army and the Air Force
Certificate of Live Birth
Marriage Certificate
Letter to applicant with Editor’s Choice Award certificate for outstanding achievement in Poetry

Applicant’s Issues as Summarized by the Board:

1. Equity – Was not assigned to the MOS promised by recruiter
2. Equity – Youth and Immaturity
3. Equity – Minor nature of o ffenses given brevity of service did not warrant negative characterization
4. Equity – Post Service

The Applicant implies that his misconduct was the result of feeling maltreated over alleged error by his recruiter resulting in his assign ment to the wrong Military Occupation Specialty (MOS). 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 evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was placed in the wrong specialty or that there was error in the recruitment or assignment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show error or in the recruitment or assignment process, such error s would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Relief denied.

The Applicant contends that his problems in the Marine Corps can be attributed to his "youth and immaturity.” While he may feel that his youth and immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated that he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied. Relief denied.

The Applicant requests upgrade to honorable because his military offenses were minor in nature and his time in service was “no t long enough to warrant a less than honorable discharge.” 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 a retention warning, one nonjudicial punishment proceeding for violations of UCMJ Article 86 (unauthorized absence), and a Summary Court Martial for violation of UCMJ Articles 86 (unauthorized absence) and 134 (breaking restriction) . The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Marine Corps and falls far short of that required for an upgrade of his characterization of service to Honorable . Relief is not warranted.

The Applicant provides evidence of post-service conduct in support of his request for upgrade. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct, which precipitated the discharge. Relief denied.

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. The Marine Corps Separation and Retirement Manual, (MCO P1900.16F, effective 01 Sep 2001 until Present, Paragraph 6210, MISCONDUCT.

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.

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 t /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 | MD0600970

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