Upgrade.Vet

USMC | DRB | 2007_Marine | MD0700072

Original file (MD0700072.rtf) Auto-classification: Denied

FOR
ex-, USMC
MD07-00072

Current Discharge and Applicant’s Request:

Application Received:                               20 061018
         Characterization of Service:
         Basis for Discharge :                       due to:
         Discharge Authority :                       MARCORSEPMAN PAR 6210.2
         Duty Assignment/ Command at Discharge:    MCSFBN NORVA 23511-2598

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

Applicant’s Issues:
1. Educational opportunities (MGIB)
2. Inequitable discharge
3. Post Service
Decision:

By a vote of the Characterization shall .
By a vote of the Basis for Discharge shall MISCONDUCT .

Date of Decision:                                            20 070823
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:

Issue 1: The Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Issue 2 (Equity): The Applicant contends that his discharge was inequitable. When a Marine’s service has been honest and faithful, it is appropriate to characterize that service as 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 three retention warnings and three separate nonjudicial punishment (NJP) proceedings for violations of the Uniform Code of Military Justice (UCMJ) , Article 92, Failure to Obey an order or regulation, and Article 123, Uttering check without sufficient funds. The record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Violation s of Articles 92 and 123 are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Court - Martial. An upgrade of characterization to under honorable conditions would therefore be inappropriate in this case .

Issue 3 (Equity): The NDRB is authorized to consider post-service factors in deciding whether to re-characterize a discharge. However, there is no law or regulation providing that an unfavorable discharge may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service. Ordinarily, the NDRB must find that a procedural impropriety or inequity existed during the period of enlistment in question before it can grant relief. Outstanding post-service conduct is considered by the NDRB 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. The Board carefully considered all of the documentation provided by the Applicant . However, t he Board determined that the Applicant ’s post service record of conduct did not justify upgrading the characterization of his service during the active duty enlistment in question .

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.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)                               19950629 - 19960616
Active:

Period of Service Under Review:
Date of Enlistment:                                 19960617
Years Contracted :                                   ; Extension:
Date of Discharge:                                  19990114
Length of Service
         Active:                                     02 Yrs 06 Mths 28 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:                                                 58
MOS:                                                  0311
Highest Rank:
Proficiency/Conduct marks (# of occasions):               3.7 ( 10 ) / 3.7 ( 10 )

Awards and Decorations (as listed on the DD Form 214): RIFLE MARKSMAN BADGE, PISTO L SHARPSHOOTER BADGE, MERITORIOUS MAST (2), CERTIFICATE OF RECOGNITION

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

19971229:        Counseling: Advised of deficiencies in performance and conduct (Financial irresponsibility and substandard conduct, specifically not maintaining sufficient funds in your account to cover checks written and displaying conduct not conducive with the Marine Corps.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19971231 :        NJP for violation(s) of UCMJ:
         Article 92: Did, on or about 19971231, failed to obey an order to remove satanic paraphernalia from his room
         Award: Forfeiture of $505.00 for 2 months, restriction for 60 days.
         Not appealed.

19980106:        Counseling: Advised of deficiencies in performance and conduct (Specifically, I can be processed for separation in the best interest of the Marine Corps for conduct not conducive to the Marine Corps by processing “hate” material.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19980608 :        NJP for violation(s) of UCMJ:
         Article 123: Did on or about 19980127, wrongfully make and utter one check upon Navy Federal Credit Union payable to AFO DFAS-CO in the amount of $7.28. Between 19980201 and 19980316, did wrongfully make and utter three checks upon the Navy Federal Credit Union payable to the MCX in the total amount of $39.22 .
         Award: Forfeiture of $ 463 .00 for 2 months ( forfeiture of $500.00 pay per month for 2 months suspended for 6 months) , restriction and extra duty for 45 days, reduction to E- 1 .
         Not appealed.

19980728 :        Counseling: Advised of deficiencies in performance and conduct ( Writing of worthless checks, specifically, writing of worthless checks while deployed. .), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19980819:        Counseling: Advised of deficiencies in performance and conduct (The demonstration of a Personality Disorder by making a suicidal gesture and thoughts of self-harm and mutilation, and the inability to adapt to the military environment and coping with the stress that military life entails. As stated in the doctor’s evaluation, I am a continued danger to myself and others.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

19981002 :        NJP for violation(s) of UCMJ:
         Article 92: Violate ALMAR 194/96 by having a earring in his nose.
         Award: Forfeiture of $300.00 for 2 months, restriction and extra duty for 45 days.
         Not appealed.

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       NOT FOUND IN RECORD
Basis for Discharge:     due to:

Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                 NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):
SJA review (date):
Separation Authority (date):     NOT FOUND IN RECORD
         Basis for discharge directed:             NOT FOUND IN RECORD
         Characterization directed:                         NOT FOUND IN RECORD
Date Applicant Discharged:                         19990114

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               6

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)

Pertinent Regulation/Law

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

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 me mbers 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

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USMC | DRB | 2007_Marine | MD0700072

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