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USMC | DRB | 2007_Marine | MD0700935
Original file (MD0700935.rtf) Auto-classification: Denied
ex-PVT, USMCR
MD07-00935
Current Discharge and Applicant’s Request
Application Received: 20070627   Characterization Received:
Narrative Reason: UNSATISFACTORY PERFORMANCE IN THE READY RESERVE
Authority: MARCORSEPMAN 6213     

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Reenlistment opportunities.
                           2. Immaturity and personal problems.
                           3. Post service.

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall UNSATISFACTORY PERFORMANCE IN THE READY RESERVE .

Date: 20 08010 3                   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 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 multiple counseling entries and administrative separation for multiple unexcused missed drill periods. The command gave every effort and attempted to work with the Applicant in order for him to fulfill the drill obligations to no avail. An upgrade to general (under honorable conditions) would be inappropriate.

Issue 3 (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, 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.

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) 19980430 - 19980621                Active: 19980622 – 19981106      HON
Period of Service Under Review:
 Date of Enlistment: 19980622      Years Contracted : 8 ; Extension:          Date of Discharge: 20001128
Length of Service : 00 Yrs 04 Mths   15 D ys         Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 1 9     AFQT:   36          MOS: 0311 Highest Rank: PVT
Proficiency/Conduct marks (# of occasions):      3. 7 ( 5 ) / 3. 7 ( 5 )  
Awards and Decorations ( per DD 214): Rifle EX


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

19980619:        A pplicant briefed on reserve drill commitment and obligations.
19981107:        Applicant joins reserve unit for duty.

19990701:        Letter of unsatisfactory participation mailed.

19990 930 :        Letter of intent to administratively reduce in rank due to unsatisfactory participation.

19991004:        Letter of unsatisfactory participation mailed.

19991008:        Letter of intent to recommend administrative discharge due to unsatisfactory participation mailed via certified mail.

19991102:        Discharge package sent to Division Headquarters recommending administrative discharge due to excessive unauthorized absences from drill.

20000315:        Letter of unsatisfactory participation mailed.

 20000318:        Letter of intent to recommend administrative discharge due to unsatisfactory participation mailed via certified mail.

20000409:        Discharge package sent to Division Headquarters recommending administrative discharge due to excessive unauthorized absences from drill.


Discharge Process

 Date Notified:   20000315
Basis for Discharge:     

Least Favorable Characterization:       
Commanding Officer’s Intended Recommendation:   

Date Applicant Responded to Notification:                  DID NOT RETURN THE NOTIFICATION PACKAGE      
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      

Commanding Officer Recommendation (date):        ( 20000409 )
SJA review (date):      
Separation Authority (date):     COMMANDER, MARINE FORCES RESERVE ( 20000724 )
Basis for discharge directed:   DUE TO FAILURE TO PARTICIPATE
Characterization directed:     
Date Applicant Discharged:       20001128      


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) Letter from Applicant’s wife


Pertinent Regulation/Law

 A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 01 Sep 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 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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