Upgrade.Vet

USMC | DRB | 2008_Marine | MD0800785

Original file (MD0800785.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:
                           Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: USMCR (DEP)    19980217 - 19980223              Active:
Period of Service Under Review:
Date of Enlistment: 19980224               Period of Enlistment : Years Months             Date of Discharge: 19980319
Length of Service: Yrs Mths 26 D ys     Education Level:         Age at Enlistment:       AFQT: 87
MOS: 9900        Highest Rank:                   Fitness Reports:
Proficiency/Conduct Marks (# of occasions):      /N/A
Awards and Decorations (per DD 214): NONE

Periods of UA/CONF:

NJPs:

SCMs:

SPCMs:

CC:

6105 Counseling:
19980311 :        For not showing the ability to successfully complete recruit training, not putting forth reasonable effort at all times in recruit training, not adapating to the Marine Corps' way of life.

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 Representation:              From Member of Congress:
Other Documentation (Describe)

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

Applicant’s Issues

1. Applicant desires an Honorable Characterization of service so he can enter law enforcement.
2. Applicant claims counseling occurred after discharge date.
3. Post service conduct.

Decision

Date: 20080807 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall ENTRY LEVEL PERFORMANCE AND CONDUCT.

Discussion

: The Applicant is requesting an upgrade for his characterization of discharge because he desires a career in law enforcement. This is an Issues which the Board cannot form the basis of relief for the Applicant, or one for which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraphs concerning “Employment/Educations Opportunties” regarding this issue.

For the information of the Applicant, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation as their characterization of service. Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances during his one month of service to the U. S. Marine Corps to warrant such a change. The Applicant should also be aware with respect to non-service related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

: ( ) . The Applicant claims his discharge is not proper because his counseling entries in his Recruit Evaluation Card occurred well after his discharge. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the characterization of service and/or the reason for discharge if such change is warranted. During Board reviews the government is presumed to conduct its affairs with regularity unless there is substantial credible evidence, to include evidence submitted by the Applicant, to rebut the presumption. The Applicant was classified as a failure to adapt to the Marine Corps environment on 10 March 1998, due to depression. The last counseling entry in the Applicant’s Recruit Evaluation Card is dated 12 March 1998. His Regimental Commanding Officer recommended that Pvt Jackson be separated from the Marine Corps on 17 March 1998. The last counseling in his service record is dated 19 March 1998, the date of his discharge from the USMC. The Applicant was subsequently discharged in accordance with established procedures and policy found in the Marine Corps Separation and Retirement Manual, MCO P1900.16F, paragraph 1004.5. The Applicant claims he was simply depressed over his grandmother’s recent death however, he did not provide any documentation to overturn the presumption he was properly diagnosed with an adjustment disorder which hindered his ability to adapt to a military environment. The Applicant has not provided any documents to support his claim that the government acted improperly and his statements alone do not overcome the government’s presumption of regularity in this case. The Board determined an upgrade would be inappropriate.

Issue 3: (Equity). RELIEF NOT WARRANTED. The Applicants states he has lived a stable and upright life in the ten years since his discharge. He has held steady employment, has been married for ten years and is a father 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 during Board reviews. The Applicant provides three character references. If his post service were to be considered, t he Applicant's

efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable employment record, documentation of community service, evidence that he is not suffering from depression, and certification of non-involvement with civil authorities. 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. As stated in Issue 1, unless there were unusual circumstances regarding a service member’s performance or conduct during his first 180 days of service that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service . The documentation provided by the Applicant did not provide any evidence that his 26 days on active duty warrants an upgrade in the characterization of his discharge. The Board determined an upgrade would be inappropriate.

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

Pertinent Regulation/Law

A. The Marine Corps Separation and Retirement Manual, (MCO P1900.16E, effective 18 AUGUST 1995 until
31 AUGUST 2001), paragraph 6205, ENTRY LEVEL PERFORMANCE AND CONDUCT.

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, provided 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 granted 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.

Employment/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 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 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 | MD0800785

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