Upgrade.Vet

USMC | DRB | 2008_Marine | MD0800775

Original file (MD0800775.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080221

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MARCORSEPMAN

Applicant’s Request:     Characterization change to: ENTRY LEVEL SEPARATION OR
                           Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP)     19930826 - 19930926              Active:          19930927 - 19931022
         USMCR (DEP)      20010321 - 20010408

Period of Service Under Review:
Date of Enlistment: 20010409               Period of E nlistment : Years Months             Date of Discharge: 20020104
Length of Service : Yrs Mths 26 D ys      Education Level:         Age at Enlistment:       AFQT: 53
MOS: 9900        Highest Rank:             Fitness R eports:
Proficiency/Conduct M arks (# of occasions):      ( )/ ( )
Awards and Decorations ( per DD 214): Rifle

Periods of UA / CONF : UA: 20010827-20010925 (29 days);
20011030-20011207 ( 38 days)
CONF: 20011211-20020103 ( 24 days)

NJPs :
20011001 : Art icle 86 (Unauthorized absence ), from 0600, 20010827 until 0935, 20010925 ( 29 days).
Awarded - . Susp - .

S CMs :

SPCMs:

CC:

6105 Counseling :

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:
         Family/Personal Status:                   Community Service:                References:
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe) Teachers Certificate
Letter from Director of Student Services, College of Education, Missouri State University

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

Applicant’s Issues

1. Applicants desires to change his RE code so he can reenlist and serve as an officer.
2. Applicant claims he should have received an entry level discharge since his financial hardship was apparent prior to his first 180 days of service.
3 . Applicant feels his p ost service efforts warrant an upgrade i n the characterization of his discharge.

Decision

Date : 20 08 807 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SEPERATION IN LIEU OF TRIAL BY COURT-MARTIAL .

Discussion

: 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 may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, D C 20370-5100 for further review and is directed to the ADDENDUM page, specifically the paragraph concerning Reenlistment/RE-codes for additional information.

: ( ) . The A pplicant is asking for a change in his discharge characterization from “ Under Other Than Honorable Conditions ” to an “ Entry Level Separation ” by reason ing his financial difficulties were evident to the Marine Corps prior to the completion of his initial 180 days of continuous active duty service. For the edification of the Applicant, upon enlistment, a member qualifies for an entry level separation during the first 180-days of continued active military service except when separation for misconduct, fraudulent enlistment, or homosexual conduct is authorized and when the characterization under other than honorable conditions is warranted. While the Applicant may feel because his financial issues were known within the 180 day parameter he is authorized an entry level characterization , his administrative discharge was based on misconduct which negates his ability to receive an entry level characterization. Additionally, because his separation was initiated outside of the 180 day period this also negates his ability to receive an entry level characterization. The Applicant was separated after serving 8 months and 26 days on active duty ; h e does not rate an entry level uncharacterized separation.

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 contends his mitigate his misconduct . While he may feel this was the underlying cause of his misconduct, th e evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions based on family problems . The Applicant’s enlistment package contains signed statements from both his wife and himself stating they can manage their financial affairs while he is attending boot camp. The Applicant claims he entered into an unauthorized absence (UA) status f or two periods to support his family financially : t he first period was from 27 August 2001 until 25 September 2001 , t he second period was from 30 October 2001 until 7 December 2001.

O n 22 October 2001, the Applicant requested mast to his Regimental Commander and asked for a hardship discharge. While the Regimental Commander supported his request , nowhere does it state t hat it w ould be classified as an “E ntry Level Characterization ” . eHH The Applicant sig ned his request for a voluntary separation on 29 October 2001 , 200 days after he came on active duty . The Applicant then entered into a UA status f or the second time on 30 October 2001 . The Applicant claims his request for a hardship discharge was denied so he went UA again to care for his family. He provides no evidence or documentation to show the command denied his package . On 7 December 2001, he was apprehended by civilian authorities a nd returned to military control .

The Applicants actions do not demonstrate or support a good faith intent to fulfill his military obligations while his separation was being processed. When a service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An 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 record of service was marred by for violation of the U niform C ode of M ilitary J ustice, Article 86 . On 20 December 2001, the Applicant requested a Separation in Lieu of Trial by Cou rt-Martial to avoid being court martialed for his second UA period . Violations of Articles 86 are considered serious offenses, punishable by a bad conduct or dishonorable discharge and up to imprisonment. The Board determined an upgrade or change would be inappropriate

: ( ) . The Applicant claims his post service actions support upgrading his characterization of service. T here 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. The Applicant provided a personal statement and names of references as evidence of post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community /church service, evidence of financial stability; statements from his references or a copy of his college diploma . The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post servi c e conduct mitigates the reason for the characterization of discharge . At this time, the Applicant has not provided sufficient documentation for the Board to consider for an upgrade.
The Board determined an upgrade or change would be inappropriate.

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 the dis charge was proper and equitable .

Pertinent Regulation/Law

A. Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 1 September 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 .

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 86 . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m (7)(b), Presumption Concerning Court-Martial Specifications .

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, 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 | MD0800775

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