Search Decisions

Decision Text

USMC | DRB | 2007_Marine | MD0700747
Original file (MD0700747.rtf) Auto-classification: Denied
ex-PVT, USMCR
MD07-00747
Current Discharge and Applicant’s Request
Application Received: 20070511   Characterization Received:
Narrative Reason: FAILURE TO PARTICIPATE         Authority: MARCORSEPMAN 6213

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Veteran’s benefits.
                           2. Post service.

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall FAILURE TO PARTICPATE.

Date: 20 07121 2             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 is directed to the Addendum regarding .

Issue 2 (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 no d ocumentation of post-service accomplishments other than his statement. 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 a drug free existence, and certification of non-involvement with civil authorities. The Board determined that the Applicant ’s post service conduct did not mitigate the misconduct that resulted in the characterization of discharge.

The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. There is credible evidence in the record that the Applicant committed serious misconduct. The Applicant does not deny this misconduct. 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. 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 conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by two discharge warnings, one NJP for a violation of UCMJ Articles 112a, and administrative separation for multiple unexcused missed drill periods. An upgrade to general (under honorable conditions) would be inappropriate.

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


Summary of Service

 Prior Service:
 Inactive: USMCR (DEP) 19880511 – 19980607      Active: 19880608 - 19880831
                                                               Active: 19900518 – 19900630      HON
Period of Service Under Review:
 Date of Enlistment: 19880608      Years Contracted : 8 ; Extension:          Date of Discharge: 19930218
Length of Service : COULD NOT DETERMINE TOTAL TIME Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 18     AFQT: 60          MOS: 2311 Highest Rank: LCPL
Proficiency/Conduct marks (# of occasions): 4. 4 ( 9 ) / 4. 2 ( 9 )
Awards and Decorations ( per DD 214): Rifle , NDSM, MUC, CERT COM

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

 19880509:        A pplicant signs Marine Corps policy concerning illegal use of drugs.
19880607:        A pplicant signs active reserve drill obligation letter.
19901110 :        NJP -- Viol UCMJ Art. 112a.
         Awarded - R IR ( E-2 ) .

 19901110 :        MARCORSEPMAN 6105 counseling for illegal drug involvement. Discharge warning issued.

19910317 :        MARCORSEPMAN 6105 counseling for PFT failure. Discharge warning issued.

19911206 :        Administratively reduced to PVT for unsatisfactory participation in reserve training.

19920815:        Applicant missed all of the 47 drill periods between August 1991 and June 1992. [Extracted from the Commanding Officer’s endorsement letter.]


Discharge Process

 Date Notified:   19920626
Basis for Discharge:     

Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  19920626
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 19920815 )
SJA review (date):       ( 19930129 )
Separation Authority (date):     COMMANDING GENERAL, MARINE RESERVE FORCE ( 19930129 )
Basis for discharge directed:  
Characterization directed:     
Date Applicant Discharged:       19930218





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)


Pertinent Regulation/Law

 A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D, effective 890627 until 950817) states that a Marine may be separated for unsatisfactory participation in the Ready Reserve under criteria established in MCO P10014.1.
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 .


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

  • USMC | DRB | 2007_Marine | MD0700547

    Original file (MD0700547.rtf) Auto-classification: Denied

    Per table 6-1, para 6213 of the MARCORPSEPMAN, the characterization of service is determined by the service record of the member. Discharge Process Date Notified: 20000510 Basis for Discharge:Least Favorable Characterization: Commanding Officer’s Intended Recommendation: Date Applicant Responded to Notification:20000510Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Commanding Officer Recommendation...

  • USMC | DRB | 2007_Marine | MD0700096

    Original file (MD0700096.rtf) Auto-classification: Denied

    By a vote of 5-0 the Narrative Reason shall remain FAILURE TO PARTICIPATE. ” 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. 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...

  • USMC | DRB | 2007_Marine | MD0701137

    Original file (MD0701137.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 Board found that Summary of ServicePrior Service: Inactive: USMCR (DEP)19960923 - Active: 19970527– 19971031 HON Period of Service Under Review: Date of Enlistment: 19961104Years Contracted:8; Extension: Date of Discharge:20030728Length of Service: Yrs Mths DysLost Time:Days UA: Days Confined:...

  • USMC | DRB | 2007_Marine | MD0700043

    Original file (MD0700043.rtf) Auto-classification: Denied

    After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the 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. NOT FOUND IN...

  • USMC | DRB | 2010_Marine | MD1002228

    Original file (MD1002228.rtf) Auto-classification: Denied

    10804 - 20010818- 20050211:ForUA from Drill from 20050107 - 20050109 Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To...

  • USMC | DRB | 2007_Marine | MD0700935

    Original file (MD0700935.rtf) Auto-classification: Denied

    The Board determined that the Applicant’s post service conduct did not mitigate 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,...

  • USMC | DRB | 2012_Marine | MD1200083

    Original file (MD1200083.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:NONE Active: Period of Service Under Review: Date of Current Enlistment: 20021028Age at Enlistment: Period of Enlistment: Years Months [6x2 ROEP]Date of Discharge:20070625Highest Rank:Length of Service: Inactive: Year(s)Month(s)10 Day(s) Active: Year(s)Month(s)29 Day(s)Education Level: 10 [GED]AFQT:54MOS: 0842Proficiency/Conduct Marks (# of occasions):NFIR/ NFIRFitness...

  • USMC | DRB | 2007_Marine | MD0700145

    Original file (MD0700145.rtf) Auto-classification: Denied

    Record of service. The Board found that Discussion Issue(s) 1-2: The Board determined that these Issues are not issues 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. ” 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.

  • USMC | DRB | 2007_Marine | MD0700322

    Original file (MD0700322.rtf) Auto-classification: Denied

    Discussion Issue(s) 1 and 2: The Board determined that these Issues are not issues 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. You are advised at this time, of my intent to process you for discharge for the Marine Corps for failure to meet Marine Corps Standards (participation in scheduled drill). ” Additional Reviews : Subsequent to a document review, former members are eligible...

  • USMC | DRB | 2006_Marine | MD0601127

    Original file (MD0601127.rtf) Auto-classification: Denied

    NOT FOUND IN RECORD Rights Elected at Notification: Consult with Counsel RETURNED UNSIGNED Obtain Copies RETURNED UNSIGNED Submit Statement(s) (date) RETURNED UNSIGNEDAdministrative Board RETURNED UNSIGNEDCommanding Officer Recommendation (date): UNDER OTHER THAN HONORABLE CONDITIONS (20000204) SJA review (date): Separation Authority (date): COMMANDER, MARINE FORCES RESERVE (20000724) Narrative Reason directed: FAILURE TO PARTICIPATE (RESERVE NOT ON ACTIVE DUTY) Characterization...