Upgrade.Vet

USMC | DRB | 2008_Marine | MD0800086

Original file (MD0800086.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20071011
Characterization of Service Received:

Narrative Reason for Discharge: (BOARD REQUIRED BUT WAIVED)
Authority for Discharge: MARCORSEPMAN 6210.2 (minor disciplinary infractions)

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 19950814 - 19951210                Active:
Period of Service Under Review:
Date of Enlistment: 19951211               Period of enlistment : Years Months             Date of Discharge: 19980824
Length of Service : Y ea rs M on ths 14 D a ys         Education Level:        Age at Enlistment:       AFQT: 67
MOS: 0352        Highest Rank: Fitness reports:
Proficiency/Conduct marks (# of occasions): ( )/ ( )
Awards and Decorations ( per DD 214): Rifle

NJPs :
         19971112 : Art icle 86 ( Unauthorized a bsen ce, from unit 0700 until 1700).
         Awarded : Susp ended:

         19980617 : Article 121 (Larceny and wrongful appropriation)
                  A rt icle 92 ( Failure to obey order or regulation )
         Awarded : Susp ended:

         19980625: Art icle 134 ( Making and uttering worthless checks totaling $967.50 ).
         Awarded :

6105 Counseling :
         19980106 : For failure to qualify with T/O weapon.
         19980420 : For operating a vehicle after consuming alcohol.

Types of Documents Submitted

Related to Military Service:      DD 214:          Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe) :

         - NDRB Documentary Review Conducted (date): 20040430
         - NDRB Documentary Review Docket Number: MD03-01290
         - NDRB Documentary Review Findings: No change warranted .

Applicant Testified:                      Witnesses:
Applicant Available for Questions: Observers:

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Youth and immaturity along with personal and financial problems.
2. Post s ervice conduct .

Decision

Date: 20 08 1001 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall minor disciplinary infractions
Discussion

Issue 1 : ( ) . The Applicant contends his youth and immaturity mitigates his in service misconduct. 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. The Applicant’s record of service was marred by three non - judicial punishments for violations of the U niform C ode of M ilitary J ustice: Article 86 (UA) ; Article 92 (Failure to obey order/regulation) ; Article 121 ( L arceny) ; and Article 134 ( U ttering useless checks). Additionally, he was the subject of two retention counseling warnings for failure to qualify with his T/O weapon (a Marine’s highest priority) and for operating a vehicle after consuming alcohol, another grave judgment error. While he may feel his youth was the underlying cause of his misconduct, the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions due to youth or immaturity . It was noted the Applicant was 20 years old at the time of his enlistment which is 2 years older than the average r ecruit and h e was over 22 years old at the time of his first NJP ; a t the time of his second NJP he was almost 23 years old. Additionally, the Applicant had an AFQT score of 67 w hich indicate s he tested more intelligent ly then the average young Marin e , and by his own admission had more life experiences which should have better prepared him for following orders and being in the military . Finally, t he financial irresponsibility the Applicant displayed by uttering useless checks to remove his vehicle from an impound storage was deliberate and pre-mediated. He knew at the time he wrote th e checks he did not have sufficient funds to cover them. He produce d no evidence , then or now, that he applied, and was turned down, for any financial assistance from Navy Relief or for a short term loan from a financial institution .

W hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel , it is appropriate to characterize that service under “H onorable ” conditions. An “ Under Other T han Honorable Conditions ” is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected of a service member. The nature , and number, of the Applicant’s misconduct constitutes a significant departure from conduct and performance expected from a U. S. Marine. Considering the Applicant’s age, innate intelligence and time in the Marine Corps when his misconduct occurred, t he Board determined an upgrade or change based on youth , immaturity , or financial problems would be inappropriate.

Issue 2: ( ) . The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides 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. Outstanding post-service conduct, 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, is considered . Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record ; documentation of community or church service ; certification of non-involvement with civil authorities ; evidence of financial stability or letters of good standing from banks, credit card company’s, or other financial institutions; documentation of a drug free lifestyle; and character witness statements. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.

The key word here is “Outstanding”. The Board is looking for actions that go beyond simply daily living. The Applicant did not provide sufficient evidence of post-service accomplishments. His work history has been irregular ; s ince his discharge from
the United States Marine Corps h e has not maintained employment with the same organization for more than 1 year at a time. When asked to explain recent employment terminations, the Applicant repeatedly alluded to minor incidents of misconduct where he was used as a scapegoat by the employer and terminated . He had been terminated numerous times but never accepted full responsibility for the actions that resulted in his termination . His letters of reference were dated over a year ago and did not come from his current employer.

To warrant an upgrade t he Applicant's efforts need ed to be more encompassing. For example, the Applicant could have produced evidence of current employment , documentation of community /church service, copies of college transcripts , and certification of non-involvement with civil authorities. For his age and experience, his efforts were insufficient. The documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. The Board determined an upgrade was not warranted and would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), 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 .

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 92, 131, 134.

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 other medical related reasons. 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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USMC | DRB | 2008_Marine | MD0800086

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