Upgrade.Vet

USMC | DRB | 2007_Marine | MD0700063

Original file (MD0700063.rtf) Auto-classification: Denied

ex-PVT, USMC
MD07-00063

Current Discharge and Applicant’s Request:

Application Received:                               20 061012
         Characterization of Service:
         Basis for Discharge :
         Discharge Authority :                       MARCORSEPMAN PAR 6210.5
         Duty Assignment/ Command at Discharge:    1 ^ST Maintbn, 1 ^st fssg, campen, ca 92055

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
         Representation:

Issues: 1 . Discharge Inequitable
2. Unsubstantiated Claim
3. Post Service

Issue 1 : ( Propriety/Equity ). The Applicant implies that he was improperly treated with a rushed discharge and insufficient assistance from the government during the discharge process. 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 wrongfully and improperly discharge . The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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 counseling of Financial Irresponsibility, the award of nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ) , Article 86 , and a guilty plea to a Summary Court-Martial in Lieu of Special Courts-Martial . Violation of UCMJ Article 112a is considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate. Relief denied

Issue 2 : (Equity) 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 claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that he was drugged by a third party. 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 provided three character statements as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, 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.

Decision:

Date of Decision:                                            20 070823
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:      Proper
Regarding equity, the Board found the discharge:         Equitable

By a vote of the Characterization shal l .
By a vote of the Basis for Discharge shall due to .

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)                               19960919 - 19970720

Period of Service Under Review:
Date of Enlistment:                                 19970221
Years Contracted :
Date of Discharge:                                  19990831
Length of Service
         Active:                                     02 Yrs 01 Mths 10 D ys (does not exclude lost time)
         Inactive:                                            NONE
         Time Lost During This Period:             Days UA: Days Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 70
MOS:                                                  2841
Highest Rank:
Proficiency/Conduct marks (# of occasions):               4.1 ( 3 ) / 4.2 ( 3 )
Fitness reports available for review?

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

Service Record Entries Related to Characterization of Service or Basis for Discharge

19960905 :        Applicant briefed on and certified understanding of Marine Corps policy concerning illegal use of drugs .

19990305 :         Applicant’s random urine sample tested positive for (Amphetamine/methamphetamine).

1999 0331 :        NJP for violation(s) of UCMJ:
         Article 86: Failed to be at appointed place and time, building 22220, from 0700, 19990303 until 2359, 19990303.
         Award: Forfeiture of $250.00 for 2 months (suspended for 6 months), restriction and extra duty for 14 days (suspended for 6 months).
         Not appealed.

19990506 :        Counseling: Advised of deficiencies in performance and conduct ( Financial irresponsibility, applicant was directed to prepare his dress blue ’D’ uniform for a retirement parade on 19990430. Applicant stated the day of the ceremony, that he had insufficient funds to retrieve his uniforms from the dry cleaners. Applicant has a demonstrated track history of financial irresponsibility .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19990628:        Memorandum of Pretrial Agreement. SNM e ntered a voluntary Plea of Guilty (Art 112a) at Summary Courts-Martial after consultation with counsel. Convening Authority agrees to withdraw charge pending Special Courts-Martial.

19990 713 :        Summary Court-Martial.
         Charge: V iolation of the UCMJ, Article 112a .
         Specification: On or about 19990305, wrongfully use methamphet a mine .
         Finding: To Charge and the specification thereunder, guilty.
         Sentence: Not found in record.
         CA action: Not found in record.

19990727:        Applicant refused Medical Officer’s Evaluation.

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       19990803
Basis for Discharge:     due to:

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                 19990803
Rights Elected at Notification:
Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        ( 19990803 )
SJA review (date):                                  ( 19990825 )
Separation Authority (date):     COMMANDER, 1 ^ST FORCE SERVICE GROUP ( 19990826 )
         Basis for discharge directed:             due to:
         Characterization directed:
Date Applicant Discharged:                         19990831

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               21

Related to Period of Service Under Review:
         From Service and/or Medical Record:               Other Records:

Related to Other Period(s) of Service:
         From Service and/or Medical Record:               Other Records:

Related to Post-Service Period:
         Employment:                                          Finances:
         Health/Medical Records:                            Substance Abuse:
         Family/Personal Status:                            Education:
        Community Service Efforts:                         References:
         Criminal Records:

Other:
         Additional Statements From Applicant:             From Representative:
        Other Documentation (Describe)            Commercial Driver's License, Certificate of Birth , High School Student Transcript

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until 31 August 2001.

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 112a Wrongful Use of Controlled Substances.

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, provi ded 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 grante d 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

Similar Decisions

NAVY | DRB | 2007_Navy | ND0700078

Original file (ND0700078.rtf) Auto-classification: Denied

After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was warranted. 19990419: Special Court Martial for violations of UCMJ Articles: 86 (unauthorized absence) from 19990212 until 19990303 (apprehended) Plea: Guilty Finding: Guilty 92 (violation of lawful order) Plea: Guilty Finding: Guilty 134 (Possession of a false military ID card with intend to deceive) Plea: Guilty Finding: Guilty Award: Reduction to...
USMC | DRB | 2011_Marine | MD1101201

Original file (MD1101201.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...
USMC | DRB | 2007_Marine | MD0700511

Original file (MD0700511.rtf) Auto-classification: Denied

After a thorough review of the Applicant’s record, issues submitted, and the standards of discipline, the Board determined that clemency was warranted. 99-323 Applicant Discharged: 19990305 Types of Documents Submitted by Applicant and Considered By BoardRelated to Military Service: Service and/or Medical Record:Other Records: Related to Post-Service Period: Employment:Finances:Education: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community...
USMC | DRB | 2009_Marine | MD0902080

Original file (MD0902080.rtf) Auto-classification: Denied

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. 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 previous in-service misconduct was an...
NAVY | DRB | 2013_Navy | ND1300963

Original file (ND1300963.rtf) Auto-classification: Denied

Clemency 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. ” Additional Reviews : After a document review has been conducted, former members...
USMC | DRB | 2008_Marine | MD0800405

Original file (MD0800405.rtf) Auto-classification: Denied

From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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. With respect to a discharge adjudged by a court-martial, the...
USMC | DRB | 2009_Marine | MD0901361

Original file (MD0901361.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.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...
NAVY | DRB | 2007_Navy | ND0700807

Original file (ND0700807.doc) Auto-classification: Denied

Date: 20071212 Location: Washington D.C Representation: Discussion Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant’s service was marred by one non-judicial punishment for a violation of Uniform Code of Military Justice, Article 112a (Wrongful use of controlled substance). BY SEPARATION Recommendation on Separation: BY Recommendation on...
NAVY | DRB | 2008_Navy | ND0800443

Original file (ND0800443.rtf) Auto-classification: Denied

Young and immature Decision Date: 20080404Location: Washington D.C Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT.Discussion : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record...
NAVY | DRB | 2010_Navy | ND1000655

Original file (ND1000655.rtf) Auto-classification: Denied

The NDRB determined an upgrade would be inappropriate.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand 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. ” Additional Reviews : After a document review...

Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700063

Similar Decisions