Upgrade.Vet

USMC | DRB | 2007_Marine | MD0700075

Original file (MD0700075.rtf) Auto-classification: Denied

FOR
ex-, USMC
MD07-00075

Current Discharge and Applicant’s Request:

Application Received:                               20 061012
         Characterization of Service:
         Basis for Discharge :                       DUE TO :
         Discharge Authority :                       MARCORSEPMAN 6210.3
         Duty Assignment/ Command at Discharge:    2dtsb 2dfssg usmarforlant

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

Applicant’s Issues :
1. Veterans benefits
2. Employment opportunities
3 . Post service conduct
Decision:
By a vote of the Characterization shall .
By a vote of the Basis for Discharge shall due to .

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:

Issues 1-2: The Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding Veterans benefits and employment issues .

Issue 3 (Equity): Normally, in order to grant relief the NDRB must find that a procedural impropriety or an inequity existed during the period of enlistment in question. 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 from members of the civilian community subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in deciding whether to change the character of a discharge. 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 Applicant submitted only a brief and vague personal statement regarding his post service conduct and accomplishments . After careful consideration, the 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 refute 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 documents submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)                               19991122 - 20000731
Active:

Period of Service Under Review:
Date of Enlistment:                                 20000801
Years Contracted :
Date of Discharge:                                  20021120
Length of Service
         Active:                                     02 Yrs 03 Mths 20 D ys (does not exclude lost time)
         Inactive:                                            00 Yrs 00 Mths 00 D ys
         Time Lost During This Period:             Days UA: Days Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 59
MOS:                                                  3521
Highest Rank:
Proficiency/Conduct marks * (# of occasions):     4.2 ( 1 ) / 3.6 ( 1 )
Fitness reports available for review?

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL, RIFLE MARKSMANSHIP BADGE

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

20010601 :        Counseling: Advised of deficiencies in performance and conduct ( PFT failure. Applicant failed to maintain the minimum physical fitness standards (in) accordance with MCO 6100.3J .), necessary corrective actions explained, sources of assistance provided.

20020125 :        NJP for violation(s) of UCMJ:
         Article 86 (4 specifications) : On or about 02020108, 20011211, 20010912 and 20010905 absent himself without leave from his appointed place of duty.
         Award: Forfeiture of $304.00 for 1 month, restriction and extra duty for 14 days.
         Not appealed.

20020208 :        NJP for violation(s) of UCMJ:
         Article 92: On or about 0900, 20020203 failed to check-in at the prescribed time for restriction, failed to obey order.
         Award: Forfeiture of $304.00 for 1 month, restriction and extra duty for 14 days.
         Not appealed.

20020215:        Counseling: Advised of deficiencies in performance and conduct (My violation of Marine Corps Regulations by violating Article 86, unauthorized absence from restriction muster on 20020203, at 0900.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20020415:        Counseling: Advised of deficiencies in performance and conduct (Your violation of MCO P1020.34F by wearing an earring on or about 20010412. This type of behavior is unacceptable and will not be tolerated. You are a United States Marine and are required to dress in appropriate civilian attire with the guidelines of the uniform regulations. The wearing of earrings by male Marines is expressly prohibited.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20020529 :        NJP for violation(s) of UCMJ:
         Article 86 (2 specifications):
         Specification 1: UA (AWOL) from 0630-0700, 20020329
         Specification 2: UA (AWOL) from 1231-1430, 20020521.
         Article 92: On or about 20020506 disobey a lawful order given by Cpl W_.
         Article 108: On or about 20020511 SNM loss military property of the United States .
         Award: Forfeiture of $619.00 for 2 months, restriction and extra duty for 45 days, reduction to E-2. Forfeiture for 1 month suspended for 6 months.
         Not appealed.

20020530 :        Counseling: Advised of deficiencies in performance and conduct ( Pattern of misconduct. ), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

20020603 :        Counseling: Advised of deficiencies in performance and conduct ( Pattern of misconduct. ) , necessary corrective actions explained, sources of assistance provided, and advised being processed for administrative discharge action .

20020627:        Vacate suspended forfeiture awarded at NJP dated 20020529.

20020712:        Counseling: Advised of deficiencies in performance and conduct (Violation Article 86 x 2x.), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

Elements of Discharge: [INVOLUNTARY]

Date Notified:                                       20021106
Basis for Discharge:     DUE TO :
Least Favorable Characterization:
Commanding Officer’s Intended Recommendation:

Date Applicant Responded to Notification:                 20021106
Rights Elected at Notification:
Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        ( 20021106 )
SJA review (date):                                  ( 20021107 )
Separation Authority (date):     COMMANDER, 2D FORCE SERVICE SUPPORT GROUP ( 20021108 )
         Basis for discharge directed:             DUE TO :
         Characterization directed:
Date Applicant Discharged:                         20021120

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               1

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 P1900.16F), effective
01 Sep tember 2001 until Present.

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
                                    Washington Navy Yard DC 20374-5023

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USMC | DRB | 2007_Marine | MD0700075

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