Upgrade.Vet

USMC | DRB | 2007_Marine | MD0700401

Original file (MD0700401.rtf) Auto-classification: Denied

ex-, USMC
MD07-00401

Current Discharge and Applicant’s Request

Application Received: 20070207 Characterization Received:

Narrative Reason: Convenience of the Government Punitive Discharge set aside (without admin dis bd)

Authority: MARCORSEPMAN 6203.4

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Obtain GI Bill/benefits
                           2. Discharge not warranted by isolated incident
                           3. Post-service conduct

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall Convenience of the Government, Review Action, Punitive discharge set aside (without admin dis bd)

Date: 20 071018                  Location: Washington D.C.

Discussion

Issue(s) 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 is directed to the Addendum regarding .

Issue 2 ( ). In his request for appellate leave pending review of his court-martial conviction, the Applicant explicitly consented to administrative discharge for convenience of the government with a characterization of service as warranted by his service record. The Applicant’s conviction was set aside by competent review authority, and the Applicant was subsequently discharged for convenience of the government per applicable regulations . The Applicant’s service was married by imposition of nonjudicial punishment for violations of the UCMJ Articles 86 and 92. Such substantiated misconduct warrants a characterization of service as under honorable conditions (general).

Issue 3 ( ). Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. 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 could be provided to the Board to corroborate claims of good post-service conduct 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. As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.

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, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, t he Board found that

Administrative Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19880511 - 19890212              Active:
Period of Service Under Review:
Date of Enlistment: 19890213               Years Contracted : ; Extension: Date of Discharge: 19931109
Length of Service : 04 Yrs 08 Mths 27 D ys          Lost Time : Days UA: Days Confine d : 151
Education Level:         Age at Enlistment:       AFQT: 40          MOS: 2512 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.1 ( 8 ) / 3.8 ( 8 )     Fitness reports :
Awards and Decorations ( per DD 214): NDSM, SSDR, RIFLE MARKSMAN BADGE

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

19900329 :        NJP -- Viol UCMJ Art. 86 – UA from Comm Shop, 19900308; Art. 92 – Disobey Cpl .
         Awarded - FOP ($ 180.00 ) for ( 1 months) , $100.00 susp 6 months ; Restr for ( 14 days); Extra duties ( 14 days).

Discharge Process

Charge(s) and Specification(s): Article 90 , Strike commissioned officer on back of head with foot.
Preferred: date                   Court-martial: 19910710 and 19910711               Findings: Guilty of Article(s) 90
Sentence: BCD; Conf 6 months ; RIR E-1 ; FOP $502.00 x 6 ; Other: NONE              CA action: 19911025

19911219:        Applicant requested appellate leave. Acknowledged consent to be discharged for the convenience of the government with the character of service warranted by service record if his sentence set aside, suspended, terminated or disapproved during the review process.

199 20128:        CG, III MEF approves appellate leave effective this date.

NC&PB Action: 19920409 Clemency: Restoration:
Appellate Review Complete: 19930331 FINDINGS AND SENTENCE SET ASIDE
BCD ordered executed: 1993 xx 10, CHARGE DISMISSED SSPCMCO No. 155-93      Applicant Discharged: 19931109

Types of Documents Submitted by Applicant and Considered By Board

Related 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 Service:                References:

Additional Statements From Applicant:    From Representative: Other Documentation (Describe) VA Form 22-1990

Pertinent Regulation/Law

A. Marine Corps Separation and Retirement Manual (MCO P1900.16D), Paragraph 6203, CONVENIENCE OF THE GOVERNMENT, effective 27 Jun 89 until 17 Aug 95.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . 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 | 2010_Navy | ND1000475

Original file (ND1000475.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Nondecisional issues: The Applicant seeks clemency in the form of an upgrade to a General (Under Honorable Conditions) characterization of his service at discharge in order to be eligible to receive Department of Veterans Affairs (VA) medical benefits for himself and his family. On 29 March 1995, the Navy and Marine Corps Appellate Leave Activity ordered the Bad Conduct...
NAVY | DRB | 2007_Navy | ND0700692

Original file (ND0700692.rtf) Auto-classification: Denied

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Discharge Process Date Notified: 19931021Reason for Discharge: - - - Least Favorable Characterization: Date Applicant Responded to Notification: 19931021 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board GCMCA...
USMC | DRB | 2009_Marine | MD0902376

Original file (MD0902376.rtf) Auto-classification: Denied

By a vote of the Narrative Reason shall DISABILITY, EXISTED PRIOR TO SERVICE, MED BD or PEBDiscussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore,...
NAVY | DRB | 2010_Navy | ND1001502

Original file (ND1001502.rtf) Auto-classification: Denied

The Convening Authority took action on the adjudged sentence on 15 September 2003, specifying, “ Except for the Bad Conduct Discharge, the sentence is approved and will be executed .” Based on a review of the record of trial and all supporting documentation, the NDRB determined that the Convening Authority intended to state that “ The Sentence is approved, and except for the Bad Conduct Discharge, will be executed .” Not noticing the error in the Convening Authority’s specified actions, the...
USMC | DRB | 2011_Marine | MD1101549

Original file (MD1101549.rtf) Auto-classification: Denied

Based on the violation of Article 112(a), processing for administrative separation, by service policy, was mandatory.The Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with paragraph 6210.5 of the Marine Corps Separation and Retirement Manual (MARCORSEPMAN). On 01 March 2004, the Separation Authority approved the request that the Applicant be separated administratively with an...
USMC | DRB | 2003_Marine | MD03-01485

Original file (MD03-01485.rtf) Auto-classification: Denied

The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Convenience of the Gov., Administer. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Decision of Appellate Review Board (Navy-Marine Corps) (including admin discharge package) (20 pages) PART II - SUMMARY OF SERVICE Prior Service (component, dates of...
USMC | DRB | 2011_Marine | MD1101150

Original file (MD1101150.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. By a vote of the Narrative Reason shall DISABILITY, EXISTED PRIOR TO SERVICE, PEB or MED BD.Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.In reviewing discharges, the Board presumes regularity in the conduct...
USMC | DRB | 2011_Marine | MD1100676

Original file (MD1100676.rtf) Auto-classification: Denied

Issue 1: (Decisional) (Clemency)CLEMENCY NOT WARRANTED. After a thorough review of the Applicant’s record and issues submitted, the NDRB determined that clemency was not warranted and that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the...
NAVY | DRB | 2010_Navy | ND1000508

Original file (ND1000508.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant desires his reenlistment code to be changed to RE-2 (not recommended for reenlistment due to retirement.)2. Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall SUFFICIENT SERVICE FOR RETIREMENT.Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to...
USMC | DRB | 2001_Marine | MD01-00279

Original file (MD01-00279.rtf) Auto-classification: Denied

PART I - APPLICANT’S ISSUES AND DOCUMENTATION Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USMCR(J) 880210 - 880712 COG Period of Service Under Review :Date of Enlistment: 880713 Date of Discharge: 931018 Length of Service (years, months, days):Active: 05 03 06 (Doesn't...

Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700401

Similar Decisions