Upgrade.Vet

USMC | DRB | 2006_Marine | MD0601047

Original file (MD0601047.rtf) Auto-classification: Denied

ex-PFC, USMC
MD06-01047

Current Discharge and Applicant’s Request :

Application Received:                               20 060801
Narrative Reason for Separation:                           MISCONDUCT
Character of Service:
Discharge Authority :                                MARCORSEPMAN 6210.6
Last Duty Assignment/ Command at Discharge:       saco soi trngcmd camp lejeune nc

Applicant’s Request:
         Narrative Reason change to:               NONE REQUESTED
         Characterization chang e to:                HONORABLE
         Review Requested :
Representation:

Decision:

Date of Decision:                                            20070614
Location of Board:                                  Washington D.C.
Complete Service Record:                                    YES
Complete Medical Record:                           YES
Complete Discharge Package:                        YES
Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:         EQUITABLE

By a vote of the Characterization shall UNDER OTHER THAN HONORABLE CONDITIONS
By a vote of the Narrative Reason shall MISCONDUCT

Summary of Service :

Prior Service:
Inactive: USMC R (DEP)                               20010224 - 20010916
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 20010917
Years Contracted :                                   ;
Date of Discharge:                                  20020917
Length of Service:                                  01 Yrs 00 Mos 01 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:                      62
Days Unauthorized Absence:                         38
Days Confinement:                                   24

Education Level:
Age at this Enlistment:
AFQT:                                                 45
MOS:                                                   9900
Highest Rate/Rank:                                   PFC

Performance Evaluation Averages (number of marks):
P roficiency :                                         3. 5 ( 3 )
Conduct :                                              2. 8 (3)

Awards and Decorations (as listed on the DD Form 214):
RIFLE MARKSMAN BADGE

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

20020206 :        Counseling: Advised of deficiencies concerning y our diagnosed physical condition not a disability ( s houlder back pain) and any resultant or aggravated condition which interferes with the effective performance of your duties. N ecessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20020218:        Applicant to UA.

20020328:        Applicant apprehended from UA status.

20020607 :        Summary Court-Martial.
         Charge: V iolation of the UCMJ, Article 86 .
         Specification: On or about, 1800, 20020218, absent himself from appointed place of duty until 0800, 20020328 (38 days).
         Finding: To Charge and the specification thereunder, guilty.
         Sentence: Forfeiture of $737, confinement for 30 days, reduction to E-1.
         CA action 20020619 : Sentence approved and ordered executed.

20020607:        Applicant to confinement at Camp Lejeune Base Brig.

20020701:        Applicant released from confinement (24 days).

20020719:        Commander, Marine Corps Base, Camp Lejeune, NC approved request for voluntary leave awaiting separation.

20020716:        Applicant’s statement “…I don’t want to be a Marine.” “…I don’t want to be in the military. ”

20020806:        Applicant to voluntary leave awaiting administrative separation.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        20020410
Basis for Discharge :                                MISCONDUCT , COMMISSION OF A SERIOUS OFFENSE

Least Favorable Characterization:                          UNDER OTHER THAN HONORABLE CONDITIONS
Commanding Officer’s Intended Recommendation :
Record Supports Narrative Reason :                          YES
Date Applicant R esponded to N otification:                 20020411
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)

Recommendation of Commanding Officer (date):     UNDER OTHER THAN HONORABLE CONDITIONS ( 20020711 )
SJA review (date):                                   ( 200207 25 )
D ischarge directed by (date):              COMMANDING GENERAL, MARINE CORPS BASE, CAMP LEJEUNE NC ( 20020731 )
Narrative reason directed :                                   MISCONDUCT , COMMISSION OF A SERIOUS OFFENSE
Characterization directed:
Date Applicant Discharged:                         20020917

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 :                            2
         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:                            3
Applicant’s Issues, as summarized by the Board:
1. Change re-enlistment code and have the opportunity to re-enter military service.
2. Presumed inequity of characterization.
3. Post service

Issue 1: The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to page one of the Addendum regarding this issue.

Decisional Issues:
The Board accepted Issue s 2-3 for consideration.

Issue 2 (Equity). When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. 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 one retention warning and a Summary Court Martial plea and finding of guilty of a violation of the Uniform Code of Military Justice (UCMJ) Article 86 . Violation of UCMJ Article 86 (UA for more than 30 days) is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An upgrade to honorable would be inappropriate. Relief denied.

Issue 3 (Equity). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant could have offer ed documentation of post-service accomplishments. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable and continuous employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of 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.

Minority Opinion

None

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.

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 of the UCMJ, Article 86, Unauthorized absence, More than 30 days.

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.

Employment / 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 | MD0601047

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