Upgrade.Vet

USMC | DRB | 2008_Marine | MD0801060

Original file (MD0801060.rtf) Auto-classification: Denied

ex-, USMC

Current Discharge and Applicant’s Request

Application Received: 20080422
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)     19990608 - 19990720              Active:

Period of Service Under Review:
Date of Enlistment: 19990721      Period of E nlistment : Years Months     Date of Discharge: 20000531
Length of Service : Yrs Mths 10 D ys      Education Level:         Age at Enlistment:       AFQT: 57
MOS: 9900         Highest Rank:    Fitness R eports:
Proficiency/Conduct M arks (# of occasions):                ( ) / ( )
Awards and Decorations ( per DD 214): Rifle

Periods of UA / CONF :

NJPs :
20000222 : Art icle 92 ( Failed to obey a lawful order), k issed a female student.
Awarded : . Susp - .

S CMs :
20000323 : Art icle 92 (Failed to obey a lawful order),
Article 117 (W rongfully used provoking words),
Article 134 (Br o k e restriction).
Sentence : (20000323 until 20000414 (22 days)).
C A Action : On 20000330 a pproved and ordered sentence executed.

6105 Counseling :
20000119 :         For violations of Article 86. In addition you have had frequent informal counseling concerning your poor attitude and performance as an MP student. You have failed the Marine Corps PFT, dropped out of Detachment runs, failed CPR periods of instruction an d had to have remediation on other classes. You were UA from fire - watch on 20000105. This is an indication of a lack of maturity, judgment, and responsibility that will not be tolerated. In addition , your actions show a disregard for rules and regulations.

20000131 :         For violation of Article 92. You violated a lawful order to refrain from wrongful relations and/or conduct with female Marines. Your actions show a complete disregard for rules and regulations. This conduct is intolerable and not keeping with our Core Values. This is an indication of a lack of maturity, judgment, and responsibility.

20000224 :         For misconduct, for your use of foul language and provoking speech and gestures on 20000214, after specifically ordered by SSgt H . not to engage in conduct of this nature toward any Marine. You are directed to comply with all Marine Corps orders/regulations and other orders that are given to you from time to time by your superiors, take responsibility for your actions, and adhere to Marine Corps standards of conduct. Furthermore, you are not to have any further involvement of a discreditable nature with military/civilian authorities, or any further violations of the UCMJ.

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) :

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

Applicant’s Issues

1. Reenlistment opportunities.
2. Upgrade his character of service to Honorable.

Decision

Date : 20 08 0821 Location: Washington D.C . R epresentation :

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

Discussion

: The Applicant regrets his conduct while on active duty in the USMC. He would like a second chance to rebuild his life and reenlist in the Marine Corps. 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 is directed to the Addendum , specifically the paragraph concerning s regarding .

Issue 2: (Equity ) RELIEF NOT WARRANTED. The Applicant is asking that his “ Under Other Than Honorable Conditions ” character of d ischarge be upgraded to “ Honorable ” so he can rebuild his life . 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 was marred by 3 retention warning counseling’s , 1 non-judicial punishment and a summary court-martial for violations of the Uniform Code of Military Justice (UCMJ) , Articles 86, 92, 117 and 134 . These infractions of the UCMJ are considered serious in nature and could have resulted in a punitive discharge and confinement time if adjudicated by a special or general court martial. The command did not pursue a punitive discharge but opted for an administrative discharge instead.

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. Supporting documentation to help support a post service conduct upgrade includes, but is not limited to, a verifiable continuous employment record, documentation of community or church service, certification of non-involvement with civil authorities , evidence of financial stability or statements from his references, 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 conduct mitigates the reason for the characterization of discharge. T he Applicant did not provide a personal statement, supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade. The Applicant's efforts need to be more encompassing. Without this supporting documentation, t he 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, Service Record En tries, Discharge Process , t he Board found

Pertinent Regulation/Law

A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective
31 January 1997 until 31 August 2001.

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 adjudg ed as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, 117 and 134 .

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 | MD0801060

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