Upgrade.Vet

USMC | DRB | 2008_Marine | MD0800587

Original file (MD0800587.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080212

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19871019 - 19880223              Active :

Period of Service Under Review:
Date of Enlistment: 19880224      Period of E nlistment : Years Months     Date of Discharge: 19930219
Length of Service : Y ea rs M on ths 26 D a ys         Education Level:        Age at Enlistment:
AFQT: 83          MOS: 1391         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions):                ( ) / ( )
Awards and Decorations ( per DD 214):     (1 STAR) (2 STARS) KLM CoC

Periods of UA / CONF : SCM: SPCM: CC:

NJP :
- 19880921 : Art icle 86 ( UA, a bsent from appointed place of duty 0230-0759, 19880917)
Awarded : Susp ended:

- 19911003 : Art icle 92 (Disobeyed ABO 1746.1 by showing up to work intoxicated).
Article 112 (Drunk on duty)
Awarded : Susp ended:

6105 Counseling :
- 19900710 : For failure to adhere to Recall procedures and being at his appointed place of duty.

- 19910504: Concerning the CMC policy on alcohol abuse.

- 19911002: For repeated failure to comply with CMC policy on alcohol abuse.

Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER HONORABLE CONDITIONS (GENERAL) ”

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

Types of Documents Submitted/reviewed

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:

Related to Post-Service Period (cont) :

Family/Personal Status:                   Community Service:                References:
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:

Other Documentation (Describe) :

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers: Yes: Major Juan Rodriguez (NDRB Member)

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

Applicant’s Issues
1. Inequitable discharge .
2. Post s ervice conduct.
Decision

Date: 20 08 1210 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall ALCOHOL REHABILITATION FAILURE .

Discussion

: ( ) . The Applicant contends his discharge was inequitable due to the fact he thought he was getting a n “Honorable” characterization upon discharge . The Board did complete a thorough review of the circumstances which led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. 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 is marred by 3 retention warnings and 2 NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (U A) , Article 92 (Failure to obey an order or regulation) and Article 112 (Drunk on duty). The Applicant was enrolled in a Level III alcohol treatment program, when an incident caused him to be deemed a Level III failure and he was sent back to his command. During the administrative separation process, t he command notified the Applicant the least favorable discharge was going to be “Honorable” and the command, to include his immediate OIC and SNCOIC, recommended he be discharged with an “Honorable” characterization . The Commanding General determined the Applicant w ould be discharged with a “General ( U nder Honorable C onditions)” characterization due to Alcohol Rehabilitation Failure. The command failed to re - notify the Applicant of his lesser characterization, thus the discharge notification was improper. The Board determined that an impropriety had taken place during the processing of the Applicant, which led him to believe the least favorable discharge characterization he would receive was “Honorable .” Based on the propriety issue, the Board felt an upgrade to “Honorable” would be appropriate by a vote of 3-2 .

: ( ) . 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 u nder review, is considered during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record ; marriage and children’s birth certificate (if applicable); character witness statements; 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 companies, or other financial institutions; and documentation of a drug free lifestyle. 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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Applicant provided an extensive work history from the time of his discharge to present. Over the last 15 years, the Applicant has shown and maintained an outstanding record while working for the State of Virginia and the Department of Homeland Security. The Applicant has also completed over 65 credits at George Mason University, but stopped to spend more time with his family as he is married with 4 children. The Applicant has maintained a clean police record and has maintained being alcohol free. The Board took in to account all the post-service documentation and concluded the Applicant has led a positive and productive lifestyle since his discharge from the Marine Corps. The Board determined , by a vote of 3-2, an upgrade to “Honorable” would be appropriate.

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 . The Marine Corps Separation and Retirement Manual (MCO P1900.16D), effective 27 June 1989 until 17 August 1995, Paragraph 6209, ALCOHOL REHABILITATION FAILURE .

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, Art icle 86 ( Unauthorized absence), Article 92 (Failure to obey an order or regulation) and Article 112 (Drunk on duty).

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 or is referred to a court-martial fo r 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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 | MD0800587

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