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USMC | DRB | 2008_Marine | MD0801414
Original file (MD0801414.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080618
Characterization of Service Received:
Narrative Reason for Discharge: COMPLETION OF REQUIRED ACTIVE SERVICE
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
Inactive: USMCR (DEP) 001109 - 001203            Active:

Period of Service Under Review:
Date of Enlistment: 20001204     Period of E nlistment : Years Months     Date of Discharge: 20041210
Length of Service : Y ea rs M on ths 4 D a ys Education Level: Age at Enlistment: AFQT: 69
MOS: 0121 (Personnel Clerk) Highest Rank: Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       4.0 ( 11 ) / 3.9 ( 11 )
 Awards and Decorations ( per DD 214): Rifle Pistol MM M M

Periods of UA : 20041120 – 20041122 (3 days )

NJPs :
20030612 : Art icle 92 ( Disobey order or regulation )
Awarded : Susp ended :

6105 Counseling :
20030411 : For Art icle 92 ( Failure to o bey order or r egulation ), g rooming standards
20031203: For Art icle 92 ( Failure to o bey order or r egulation ), failure to f ield d ay , clean room
20040224: For Art icle 86 (Reporting late to work ), 2 specifications
20041018: Fo r Art icle 86 (Reporting late ), 3 specifications
20041026: For Art icle 134 ( Conduct u nbecoming a Marine ), integrity
20041116: For Art icle 92 and Article 134 ( Dereliction of d uty as a Mail Clerk)
20041123: For Art icle 86 (UA ), 3 days
20041203: For Art icle 86 (UA ), 1.5 h ou rs late to work
20041207: For Art icle 92 ( Failure to o bey order or r egulation ), drinking liquor in barracks
20041209: For Art. 92 ( Failure to o bey order or r egulation ), failure to maintain g rooming standards
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. Inequitable discharge .

Decision

 Date: 20 08 1002          Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall COMPLETION OF REQUIRED ACTIVE SERVICE .
Discussion

 : ( ) . The Applicant contends his discharge was inequitable based on the fact the command gave him final PRO/CON marks of 0.0/0.0 , to purposely lower his average , with the intent to discharge the Applicant with a “General (Under Honorable Conditions) ” . 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 contained one NJP and ten 6105 retention warning counseling’s, seven of which occurred in the last review period. The Applicants average PRO/CON marks in s ervice were 4.4/4.3 . The addition of his discharge PRO/CON marks of 0.0/0.0, pulled the Applicants in- service average down to 4.0/3.9, thus making his overall conduct average rate a “General (Under Honorable Conditions) ” discharge . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned that an inequity in the characterization of the Applicant’s service took place. The Board acknowledged the fact the repetitive counseling’s gave the appearance the command was intentionally going after the Applicant for an unspecified reason. The issuance of 0.0 pro/con marks did in fact lower the over all pro/con marks of the Applicant upon his discharge. The Board determined the upgrade to “Honorable” was appropriate.

After 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 The Marine Corps Separation and Retirement Manual, (MCO P1900.16F ) , effective 1 September 2001 until Present,
Paragraph 1005.

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, 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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