Upgrade.Vet

USMC | DRB | 2008_Marine | MD0800800

Original file (MD0800800.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080207
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)    20021010 - 20030821              Active:
Period of Service Under Review:
Date of Enlistment: 20030822               Period of enlistment : Years Months             Date of Discharge: 20070821
Length of Service: Yrs Mths D ys       Education Level:         Age at Enlistment:       AFQT: 82
MOS: 3043        Highest Rank:                   Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
Awards and Decorations (per DD 214): SSDR, ICM, GWOTSM,GWOTEM, Rifle

Periods of CONF: 24 days.

NJPs:
         20060304: Art 92 (Failure to Obey);
Art 113 (Misbehavior of a Sentinel).
Awarded - . Susp - .
         20060407: Art 86 (Absence without leave), 2-specifications;
Art 92 (Failure to Obey), 2-specifications.
Awarded - , RIR, . Susp - .
         20060424: Art 91 (Insubordinate Conduct), 2-specifications;
                  Art 107 (False official statement).
Awarded – RIR, FOP. RESTR EPD. Susp – FOP.

SCMs:
         20061212: Art . Sentence - , , .

6105 Counseling:
         20050718: For Misconduct, Reckless Driving
         20060304: Violations of Article 92, Failure to Obey a Lawful Order; Art 113, Misbehavior of a Sentinel
         20060414: Violations of Articles 91, Insubordinate Conduct; Art 107, False Official Statement

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 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.       Reenlistment opportunities – Change RE Code.
2.       Treated harshly by his chain on command.

Decision

Date: 2008 619              Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .

Discussion

: The Applicant is requesting a change in his RE Code so he can enlist in the Oregon National Guard. which 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): RELIEF NOT WARRANTED. The Applicant claims his punishment was too harsh and he should have fought back. He is asking for an upgrade of his discharge from an “Under Other than Honorable Conditions” to a “General Discharge”. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention he was treated unfairly by his command . The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when a member’s service has been honest and faithful but significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. An under other than honorable conditions discharge is warranted when the basis for separation is commission or omission of an act which constitutes a significant departure from the conduct expected of a Marine. 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 the award of three page 11 entries for violation of Articles 91, 92, 107, 113; three non-judicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Articles 86, 91, and 92; and a Summary Courts Martial for violation of the Uniform Code of Military Justice (UCMJ), Articles 91. Violations of UCMJ Articles 91, 92, 107 and 113 are considered serious offenses punishable by a bad conduct or dishonorable discharge and up imprisonment. The Board determined a n upgrade to general would be inappropriate.

Pertinent Regulation/Law

A Marine Corps Separation and Retirement Manual , (MCO P1900.16F effective 01 September 2001 until Present, Paragraph 6210, MISCONDUCT.

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 91 , 92, 107 and 113 .

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 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 | MD0800800

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