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USMC | DRB | 2008_Marine | MD0800845
Original file (MD0800845.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20071212
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN 62033.2 (CONDITION NOT A DISABILITY)

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)     20050531 - 20060410              Active:
Period of Service Under Review:
 Date of Enlistment: 20060411               Period of E nlistment : Years Months             Date of Discharge: 20061115
Length of Service : Yrs Mths 05 D ys      Education Level:         Age at Enlistment:       AFQT: NFIR
MOS: 9971        Highest Rank:                     Fitness reports:
Proficiency/Conduct M arks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle

Periods of UA / CONF :

NJPs :    
         20060823 : Art 92 (Broke SA Co student policy by consuming alcohol while on student status) .
                  Awarded - . Susp - .
        

6105 Counseling :
         20060822 : For Art 92 ( F ailure to follow an order or regulation. )
20061004 : For your physical condition (Wrist Sprain and Traumatic Arthritis Hand Right).


Types of Documents Submitted/reviewd

 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) Letter from Fremont County, Colorado County Clerk and Recorder

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

Applicant’s Issues

1.       Feels his misconduct did not rate a General Discharge.
                                                      Decision


Date : 20 08 0626             Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall CONDITION NOT A DISABILITY .
Discussion

 ( ) :    RELIEF NOT WARRANTED. The Applicant is asking for an upgrade of his discharge character to HONORABLE from GENERAL (Under Honorable Conditions.). He states there was no reason for him to receive a GENERAL (Under Honorable Conditions) discharge since he was released from active duty due to a pre-existing injury and he had received a good conduct medal.

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. 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. The Applicant’s record was marred by one counseling for failure to follow an order or regulation and for one non-judicial punishment for violation of the U niform C ode of M ilitary J ustice (UCMJ), Art icle 92, Failure to Obey an Order (Consuming alcohol while in a student status) . Violation of UCMJ Article 92 is considered a seriou s offense punishable by a bad conduct or d ishonorable discharge and up imprisonment if adjudicated by a court-m artial. The command did not elect to pursue a court-martial but opted for an administrative separation instead, based on the Article 92 violation not a medical issue . The Board determined an upgrade would be inappropriate.

In reference to the Applicant’s comment stating he had received a Good Conduct Medal (GCM), a review of the DD 214 indicates his GCM commencement date was 23 August 2006: the Applicant would have had to serve 3 years from the commencement date without significant adverse incident to rate a Good Conduct Medal. He was discharged 15 November 2006, less than 3 month into his 3 year GCM observation period. There is no record of the Marine Corps issuing a GCM to the Applicant below the required observation period.

A fter 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. Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 and Present, paragraph 6203, CONVENIENCE OF THE GOVERNMENT .

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, (Failure to Obey Order or Regulation) .



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 “PTSD . ” 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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