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USMC | DRB | 2007_Marine | MD0700794
Original file (MD0700794.rtf) Auto-classification: Denied
ex-, USMC
MD07-00794
Current Discharge and Applicant’s Request
Application Received: 20070522   Characterization Received:
Narrative Reason: MISCONDUCT CIVILIAN CONVICTION (BOARD REQUIRED BUT WAIVED)
Authority: MARCORSEPMAN 6210.7

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Re-enlist/RE Code change
                           2. Did not understand administrative separation processing paperwork

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT.

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 ( ). The Applicant contends that , while he was incarcerated, he signed papers “thinking they were my release papers back to the military.” The Board noted that the administrative Notification of Proposed Separation and Respondent’s Acknowledgement and Election of Rights forms were not contained in his service record. However, in light of the Applicant’s statement, the DD 214 separation code indicating that an administrative discharge board was waived, and the Separation Authority’s endorsing action which reference a separation recommendation from the unit to which the Applicant was assigned, the Board was confident that the presumption of regularity attaching to the conduct of government affairs was not in question in this case , that the Applicant was convicted by civilian authorities for an offense for which a punitive discharge was authorized for a like offense under the Uniform Code of Military Justice, and that the Applicant was properly notified of, and given the opportunity to respond to, a proposed administrative separation for misconduct due to a civilian conviction . The Applicant’s statement is not sufficient to overcome the presumption that the administrative paperwork associated with his discharge was complete, accurate and clear on its face.

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 Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214 :

         “ MISCONDUCT ”
        
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Summary of Service

 Prior Service:
 Inactive: USMCR (DEP)     19970218 - 19970311              Active:         
Period of Service Under Review:
 Date of Enlistment: 19970312      Years Contracted : ; Extension:   Date of Discharge: 19981015
Length of Service : 01 Yrs 07 Mths 04 D ys          Lost Time : Days UA: Days Confine d : UNDETERMINABLE
Education Level:         Age at Enlistment:       AFQT: 69          MOS: 6672 Highest Rank:
Proficiency/Conduct marks (# of occasions):      4.2 ( 2 ) / 2.8 ( 3 )     Awards and Decorations ( per DD 214): Rifle

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

 19971106 :        Applicant to unauthorized absence.

19971207 :        Applicant declared deserter .

 19971216 :        Applicant joined for record purposes In Hands of Civilian Authorities.

Discharge Process

 Date Notified:   NOT FOUND IN RECORD
Basis for Discharge:      NOT FOUND IN RECORD
 Least Favorable Characterization:        NOT FOUND IN RECORD
 Commanding Officer’s Intended Recommendation:    NOT FOUND IN RECORD
Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
 Rights Elected at Notification:            NOT FOUND IN RECORD
Commanding Officer Recommendation (date):        NOT FOUND IN RECORD
 SJA review (date):       ( UNDATED )
Separation Authority (date):     COMMANDER, 2D MARINE AIRCRAFT WING ( 19981006 )
Basis for discharge directed:   DUE TO:
Characterization directed:     
Date Applicant Discharged:       19981015

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) Ltr from Recruiter, Alabama ANG

Pertinent Regulation/Law

 A. Paragraph 6210, Misconduct , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16D), effective 31 January 1997 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 .



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

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